{"id":28962,"date":"2017-09-08T17:52:09","date_gmt":"2017-09-08T22:52:09","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=28962"},"modified":"2017-09-16T17:54:37","modified_gmt":"2017-09-16T22:54:37","slug":"cal-4-dna-properly-seized-when-crime-was-a-felony-wasnt-unreasonable-after-prop-47-retroactively-made-it-a-misdemeanor","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=28962","title":{"rendered":"Cal.4: DNA properly seized when crime was a felony wasn’t unreasonable after Prop 47 retroactively made it a misdemeanor"},"content":{"rendered":"

Prop 47 that retroactively reduced some felonies to misdemeanors does not mean that DNA reasonably collected back when it was a felony was unreasonably seized at the time and didn’t retroactively become unreasonable. People v. Harris<\/a>, 2017 Cal. App. LEXIS 770 (4th Dist. Sept. 6, 2017):
\n<\/p>\n

The collection of Harris’s DNA sample was minimally intrusive on her privacy. In King, the United States Supreme Court, in rejecting a Fourth Amendment challenge to Maryland’s DNA Collection Act, observed that \u201c[t]he expectations of privacy of an individual taken into police custody \u2018necessarily [are] of a diminished scope.\u2019\u201d (King, supra, at p. ___ [133 S.Ct. at p. 1978]; accord, Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049, 1058 (Harris) [Felony arrestees have a \u201csignificantly diminished expectation of privacy.\u201d].) \u201cIt is beyond dispute that \u2018probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.\u2019\u201d (King, supra, at p. ___ [133 S.Ct. at p. 1970].)<\/p>\n

The procedure of collecting DNA by buccal swab is minimally intrusive physically. \u201cThe procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no \u2018surgical intrusio[n] beneath the skin,\u2019 [citation], and it poses no \u2018threa[t] to the health and safety\u2019 of arrestees. \u2026\u201d (King, supra, at p. ___ [133 S.Ct. at p. 1968].) \u201cNearly half a century ago, the Supreme Court upheld as \u2018reasonable\u2019 a hospital’s extraction of a blood sample, which was done \u2018[a]t the direction of a police officer\u2019 who was investigating a person suspected of driving under the influence.\u201d (Harris, supra, 669 F.3d at p. 1058, citing Schmerber v. California (1966) 384 U.S. 757, 758, 771 [16 L. Ed. 2d 908, 86 S. Ct. 1826].) Collecting DNA by buccal swab \u201cis far less invasive than the blood test approved in Schmerber. \u2026 The buccal swab cannot seriously be viewed as an unacceptable violation of a person’s bodily integrity.\u201d (Harris, at p. 1059.) And \u201ca swab of this nature does not increase the indignity already attendant to normal incidents of arrest.\u201d (King, at p. 1979.)<\/p>\n

Moreover, the state’s use of DNA samples collected under the Database Act is strictly limited by statute. …\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Prop 47 that retroactively reduced some felonies to misdemeanors does not mean that DNA reasonably collected back when it was a felony was unreasonably seized at the time and didn’t retroactively become unreasonable. People v. Harris, 2017 Cal. App. LEXIS … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-28962","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/28962","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=28962"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/28962\/revisions"}],"predecessor-version":[{"id":28963,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/28962\/revisions\/28963"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=28962"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=28962"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=28962"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}