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Cal Appeals Court Overturns DNA Collection

By Robyn Hagan Cain on August 05, 2011 | Last updated on March 21, 2019

The California First District Court of Appeals ruled unanimously on Thursday that the state’s DNA and Forensic Identification Data Base and Data Bank Act (DNA Act) violates Fourth Amendment protections against unreasonable search and seizure.

Appellant Mark Buza challenged the law after being slapped with a misdemeanor conviction for not providing DNA evidence following an arson admission. Buza was arrested without a warrant in 2009 on suspicion of arson; he refused to provide a DNA sample on a cheek swab. He was later convicted of arson, possession of an incendiary device, vandalism and failing to provide a DNA specimen, and was sentenced to 16 months in prison, reports KTVU.

Buza claimed in his appeal that even though he was later convicted of arson, his conviction on the charge of failing to provide a DNA sample under the DNA Act was unconstitutional because he was entitled to a presumption of innocence at the time of his arrest. The court agreed and overturned the misdemeanor conviction.

Judge Anthony Kline, finding DNA Act unconstitutional, said, "There is no doubt that an extraordinary amount of private personal information can be extracted from the DNA samples and specimens seized by the police without a warrant, collected and indefinitely retained by the Department of Justice," and that DNA collection, "unreasonably intrudes on such arrestees' expectation of privacy."

Many courts, unfortunately, do not share Kline's regard for the Fourth Amendment.

As we reported last week in FindLaw's Third Circuit blog, the Third Circuit recently upheld DNA collection by police officers from persons under arrest, finding that a DNA sample is no more than a fingerprint "for the twenty-first century."

California federal courts have been similarly unimpressed by the differences between fingerprints and DNA; the ACLU is currently appealing a federal district court decision upholding post-arrest DNA collection of four citizens who were arrested, but never charged with a crime.

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