DNA Collection After Serious Arrest Constitutional in California

By George Khoury, Esq. on April 03, 2018 | Last updated on March 21, 2019

When a person is arrested for a serious crime in California, the law now definitely allows for officers to not only fingerprint and photograph the arrestee as part of the booking process, it also allows for a DNA cheek swab to be taken as well.

Even though there are clearly privacy concerns with taking a DNA sample from an arrestee, in 2004, the California electorate approved a proposition that required felony arrestees, and convicts, to provide law enforcement a DNA sample. Refusal to comply is a misdemeanor.

What's This Case About?

Shortly after the law went into effect in 2009, Defendant Mark Buza was arrested due to setting a police car on fire. Buza admitted to setting the fire as an act of protest. And in keeping with his apparent protesting nature, Buza refused to comply with the DNA sample requirement. However, after his conviction on the underlying crime, he complied after the court ordered that law enforcement could obtain the sample by force if he refused again.

Buza appealed the conviction on the misdemeanor charge to California appellate court, which actually found in his favor. That court ruled that:

[T]he DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement 8 analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.

Unfortunately for Buza, an appeal of the appellate court decision was taken up to the state's Supreme Court. While the case was pending, a U.S. Supreme Court case, Maryland v. King was decided, upholding a similar law over a Fourth Amendment challenge. SCOTUS held:

[W]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

The state supreme court then remanded to the appellate court in light of King, but the appellate court affirmed its prior ruling using the California Constitution, which resulted in yet another appeal to the state supreme court. Unfortunately for Buza, the state's high court reversed the appellate court, upholding the law as valid both under the U.S. and state constitutions.

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