{"id":9949,"date":"2013-12-24T06:45:02","date_gmt":"2013-12-10T07:43:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-12-10T07:43:56","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=9949","title":{"rendered":"Cal.4th: DNA taking is reasonable on balance, and can be used to solve cold cases"},"content":{"rendered":"

In California, DNA is taken from all felony arrestees, and defendant\u2019s was put into the state CODIS and he was linked to cold case burglaries and sex offenses. The seizure and use of his DNA was reasonable. Balancing the privacy interests in what part of the DNA is used and how against the governmental interests, this taking and use of DNA is reasonable under the Fourth Amendment. People v. Lowe<\/a>, 221 Cal. App. 4th 1276 (4th Dist. November 15, 2013), published December 4, 2013:<\/p>\n

<\/p>\n

2. Promotion of legitimate governmental interests<\/em><\/p>\n

On the other side of the Fourth Amendment balance, we weigh four principal and legitimate governmental interests: identifying arrestees, solving past crimes, preventing and solving future crimes, and exonerating the innocent.<\/p>\n

a. Identification of arrestees
\n<\/em><\/p>\n

The primary purpose of the amended DNA Act is to identify arrestees. (See \u00a7 295.1, subd. (a) [\u201cThe Department of Justice shall perform DNA analysis \u2026 pursuant to this chapter only for identification purposes.\u201d].) This longstanding governmental interest is legitimate. (King, supra, 133 S.Ct. at p. 1970 [\u201c[T]he need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody\u201d is a \u201clegitimate government interest.\u201d]; Jones v. Murray (4th Cir. 1992) 962 F.2d 302, 306 [\u201c[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest.\u201d]; see also United States v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947 [\u201c[T]racking \u2026 identity is the primary consequence of DNA collection.\u201d].)<\/p>\n

b. Solving past crimes<\/em><\/p>\n

By accurately identifying felony arrestees, the DNA database helps promote the legitimate and compelling governmental interest in solving past crimes. When California voters passed Proposition 69, enacting the 2004 Amendment to the DNA Act, they expressly recognized the critical importance of expanding the DNA data bank program to include collection and analysis of DNA samples from felony arrestees in order to promote the expeditious solving of crimes: \u201cThe people of the State of California do hereby find and declare that \u2026 [t]here is a critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders \u2026 .\u201d (Voter Information Guide, supra, text of Prop. 69, sec. II, subd. (b), p. 135.)<\/p>\n

If a felony arrestee has committed crimes other than the crime he or she is currently suspected of committing, those past crimes must be prosecuted as soon as possible, while victims and witnesses can be located and before memories fade. In this respect the collection and carefully restricted use of identifying DNA information taken from felony arrestees promotes the legitimate governmental interest in the accurate and expeditious solving of past crimes.<\/p>\n

In addition, \u201cby contributing to the solution of past crimes, DNA profiling of qualified \u2026 offenders helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large.\u201d (Kincade, supra, 379 F.3d at p. 839.)<\/p>\n

c. Preventing and solving future crimes<\/em><\/p>\n

\u201c\u2018The government’s interest in preventing crime by arrestees is both legitimate and compelling.\u2019 \u201d (King, supra, 133 S.Ct. at p. 1973.)<\/p>\n

Implementing the 2004 Amendment provides law enforcement agencies with a catalogue of arrestees’ DNA, a tool that potentially will help solve and prevent future crimes. The mere existence of the DNA database creates a strong deterrent effect, and a felony arrestee from whom a DNA sample has been collected pursuant to the 2004 Amendment will be less likely to commit another crime in the future because he or she knows that the collected DNA is catalogued in the DNA database. (See, e.g., Kincade, supra, 379 F.3d at pp. 838\u2013839 [mandatory DNA profiles of convicted felons \u201cfosters society’s enormous interest in reducing recidivism\u201d]; Jones v. Murray, supra, 962 F.2d at p. 311 [\u201c[T]he Commonwealth’s interest in combatting and deterring felony recidivism justifies the involuntary taking of the sample and the creation of the DNA data bank as reasonable in the context of the Fourth Amendment.\u201d].)<\/p>\n

d. Exonerating the innocent<\/em><\/p>\n

Last, by helping identify the actual perpetrators of crimes, the DNA database allows law enforcement officers to eliminate innocent persons from suspect lists. (See King, supra, 133 S.Ct. at p. 1974 [\u201c[I]n the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.\u201d]; United States v. Sczubelek (3d Cir. 2005) 402 F.3d 175, 185 [\u201c[T]he DNA samples will help to exculpate individuals who are serving sentences of imprisonment for crimes they did not commit and will help to eliminate individuals from suspect lists when crimes occur.\u201d].) The privacy intrusion caused by a buccal swab of a felony arrestee must be viewed as minor compared to society’s compelling goal of ensuring that innocent people are exonerated.<\/p>\n

3. Balancing and holding<\/em><\/p>\n

In Harris, supra, 669 F.3d at page 1058, the Ninth Circuit recently explained that \u201c[t]he 2004 Amendment does not provide the Government carte blanche to take buccal swabs from anyone and everyone. It applies only to persons arrested on suspicion of having committed a felony. Before individuals can be required to give a buccal swab DNA sample under the 2004 Amendment, a law enforcement officer must determine that there is probable cause to suspect that person of having committed a felony.\u201d (Italics omitted.)<\/p>\n

We conclude that the legitimate governmental interests promoted by the warrantless collection of buccal swab DNA samples from felony arrestees who are taken into custody upon probable cause, far outweigh the arrestees’ privacy concerns. Our conclusion is based on the following five reasons: The felony arrestee’s diminished privacy interests; the de minimis nature of the physical intrusion involved in the collection of a buccal swab DNA sample; the carefully limited scope of the DNA information that is extracted; the strict limits on the range of permissible uses of the DNA information obtained and the significant criminal penalties imposed upon those who violate those limitations; and the strong law enforcement interests in obtaining arrestees’ identifying information, solving past and future crimes, deterring future criminal acts, and exonerating the innocent.<\/p>\n

Accordingly, we hold that the 2004 Amendment authorizing the mandatory and warrantless collection and analysis of buccal swab DNA samples from felony arrestees does not violate the Fourth Amendment. Thus, we also conclude the court properly denied Lowe’s suppression motion.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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