{"id":3773,"date":"2010-05-16T20:12:58","date_gmt":"2010-01-27T07:57:29","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-01-27T07:57:29","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3773","title":{"rendered":"Cal: DNA profile satisfies particularity requirement"},"content":{"rendered":"

A DNA profile in an arrest warrant issued the day before the statute of limitations for the offense satisfied the Fourth Amendment particularity requirement. Later match of prison collected DNA led to defendant. And, extraction of defendant\u2019s DNA as a convict under state statute in effect in 1999 which might have been error did not mandate application of the federal exclusionary rule. People v. Robinson<\/a>, 47 Cal. 4th 1104, 224 P.3d 55, 104 Cal. Rptr. 3d 727 (2010):<\/p>\n

With regard to any privacy interest in identifying information, it is established that individuals in lawful custody cannot claim privacy in their identification. \u201cThough, like fingerprinting, collection of a DNA sample for purposes of identification implicates the Fourth Amendment, persons incarcerated after conviction retain no constitutional privacy interest against their correct identification.\u201d (Groceman v. U.S. Dep’t of Justice (5th Cir. 2004) 354 F.3d 411, 413\u2013414.) In Kincade, the court explained that \u201cthe DNA profile derived from the defendant’s blood sample establishes only a record of the defendant’s identity\u2014otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense (indeed, once lawfully arrested and booked into state custody). For, as we recognized in Rise, \u2018[o]nce a person is convicted of one of the felonies included as predicate offenses under [the Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.\u2019 59 F.3d 1560; see also Groceman [, supra,] 354 F.3d 413\u2013[4]14; Jones [v. Murray (4th Cir. 1992)] 962 F.2d [302,] 306\u2013307.\u201d (Kincade, supra, 379 F.3d at p. 837.)<\/p>\n

. . .<\/p>\n

The fact that defendant Robinson’s blood was collected in violation of our state law at the time does not alter our Fourth Amendment analysis. That law was more restrictive than the Fourth Amendment and, for Fourth Amendment purposes, it is not dispositive that a search and seizure was not permissible under state law. …<\/p>\n

. . .<\/p>\n

However, even assuming, without deciding, that the state statutory violation that led to the nonconsensual extraction of defendant’s blood for the March 2, 1999 blood sample constituted a Fourth Amendment violation, application of the federal exclusionary rule would not be appropriate for such a violation. (See Hudson v. Michigan (2006) 547 U.S. 586, 590, 602 [165 L. Ed. 2d 56, 126 S. Ct. 2159] (Hudson) [statutory knock-and-announce violation does not necessarily trigger the exclusionary rule].) …<\/p>\n

2. The Particularity Requirement<\/p>\n

Defendant contends a John Doe arrest warrant accompanied by a DNA genetic profile does not constitute \u201ca means of description \u2018reasonable to the circumstances\u2019\u201d because, rather than \u201cdescrib[ing]\u201d the person to be arrested, it only \u201cidentifies a defendant by the use of a fictitious name without any description whatsoever\u201d and therefore does not describe that person \u201cwith sufficient certainty.\u201d Defendant argues that a fictitious name or a John Doe name is insufficient to identify anyone, and therefore is insufficient to identify anyone with particularity.<\/p>\n

Under both federal and state law, an accusatory pleading or arrest warrant may issue with a fictitious name provided it names or describes the person being charged with reasonable certainty. (See, e.g., Cabell, supra, 153 U.S. at p. 85 [an arrest warrant \u201cmust truly name [the person charged], or describe him sufficiently to identify him\u201d]; People v. Montoya, supra, 255 Cal. App. 2d at pp. 142\u2013143; Ernst v. Municipal Court of Los Angeles (1980) 104 Cal. App. 3d 710, 718 [163 Cal. Rptr. 861].) As the court in Montoya explained, \u201c[w]here a name that would reasonably identify the subject to be arrested cannot be provided, then some other means reasonable to the circumstances must be used to assist in the identification of the subject of the warrant.\u201d (Montoya, supra, 255 Cal. App. 2d at p. 142, citing U. S. v. Swanner (E.D. Tenn. 1964) 237 F. Supp. 69, 71, italics added; see also Blocker v. Clark (1906) 126 Ga. 484 [54 S.E. 1022]; 3 LaFave, Search and Seizure (3d ed. 1996 & Supp. 2003) \u00a7 35.1(g).)<\/p><\/blockquote>\n

See State v. DNA Profile<\/a>; Jurist<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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