Taking DNA from this defendant on a misdemeanor arrest was not a Fourth Amendment violation under King. It did violate state law, but the court doesn’t suppress. It matched DNA in a rape case and led to him being charged. People v. Lancaster, 2015 COA 93, 2015 Colo. App. LEXIS 1052 (July 16, 2015):
[*22] First, evidence seized as a result of a statutory violation does not ordinarily require suppression, unless the seizure was willful and recurrent. Casillas, ¶ 19, ___ P.3d at ___. Lancaster does not argue, nor would the record support a conclusion, that the violation of Katie’s Law was willful and recurrent.
[*23] Second, the record and the above-cited case law demonstrate that the government’s interest in the DNA sample was not outweighed by Lancaster’s privacy interests. This is particularly true in this case, where (1) Lancaster was a suspect taken into custody, see King, 133 S. Ct. at 1978; (2) he was under the supervision of the probation department when the first sample was taken, cf. Rossman, 140 P.3d at 175-76; and (3) the intrusion into Lancaster’s privacy resulting from the buccal swabs was minimal and akin to booking procedures like the fingerprinting and photographing of a suspect, see King, 133 S. Ct. at 1977, 1980. Accordingly, we perceive no Fourth Amendment violation here.
[*24] Third, notwithstanding Lancaster’s assertion to the contrary, the state constitution provides the same, not greater, protection in this area than the Fourth Amendment. See Rossman, 140 P.3d at 176 (rejecting the defendant’s argument that the Colorado Constitution provides greater protections to probationers than does the United States Constitution).
[*25] Accordingly, we conclude that the trial court did not err in denying Lancaster’s motion to suppress the DNA profile that was allegedly developed as a result of the prior warrantless collections of DNA evidence from him.
[*26] We are not persuaded otherwise by Lancaster’s argument that the search here was unconstitutional because Lancaster was only in custody for misdemeanor offenses. Although in King, 133 S. Ct. at 1980, the Supreme Court concluded that it was constitutional to collect DNA from a suspect detained in custody for a “serious offense,” the Court did not hold that it is unconstitutional to take DNA from arrestees under all other circumstances. See People v. Marquez, No. G048762, 2015 WL 292310, at *5 (Cal. Ct. App. Jan. 21, 2015) (unpublished opinion) (“While the Supreme Court in [King] was addressing a statute that specified DNA samples could be processed only after an arrestee had been arraigned, and the court found the statutory procedure constitutional, the court did not state that the collection and processing of DNA samples is unconstitutional in all other contexts.”) (review granted Apr. 29, 2015). Moreover, as the Ninth Circuit recently observed, “Under the Court’s rationale [in King], the magnitude of the state’s interest does not necessarily depend on the seriousness of the crime of arrest. As the majority [in King] observed, ‘people detained for minor offenses can turn out to be the most devious and dangerous criminals.'” Haskell v. Harris, 745 F.3d 1269, 1273 (9th Cir. 2014) (quoting King, 133 S. Ct. at 1971).
[*27] Nor are we persuaded by Lancaster’s argument that the search here was unreasonable because Katie’s Law has the express purpose of solving and preventing crime, while the King Court stated that the Maryland statute at issue in that case was concerned with processing and identifying people taken into custody. See King, 133 S. Ct. at 1970. The statute at issue in King did not expressly say that identification was its sole governmental interest. See Md. Code Ann., Pub. Safety § 2-505 (West 2015). Nor did the Supreme Court say that identification is the only legitimate governmental interest served by collecting DNA samples. Indeed, a division of this court recently identified other governmental interests in collecting DNA samples, including interests similar to those identified in Katie’s Law. Compare Casillas, ¶ 26, ___ P.3d at ___ (noting that the government’s special needs in collecting DNA samples from probationers include exonerating the innocent, solving past and future crimes, deterring recidivism, and reintegrating probationers into the community), with § 16-23-102, C.R.S. 2014 (providing that (1) the collection and use of DNA is a valuable tool in preventing crime; (2) the analysis of DNA has been used to exonerate innocent individuals charged with or convicted of crimes; and (3) the implementation of Katie’s Law will result in preventing a significant number of violent crimes and in solving a number of unsolved crimes in Colorado).
[*28] And we see nothing in People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976), on which Lancaster relies, that suggests that the Colorado Constitution provides greater protection in this area than the Fourth Amendment.
