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Collecting DNA from Arrestees Is Unconstitutional, First District Rules. Kate Moser
Collecting DNA from Arrestees Is Unconstitutional, First District Rules. Kate Moser
SAN FRANCISCO — A California law that mandates DNA samples be taken from felony arrestees is unconstitutional, a state appeal court ruled Thursday.

"The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to diminish the privacy guaranteed by the Fourth Amendment," wrote First District Justice J. Anthony Kline.

California voters amended the state's DNA Act in 2004. Among other things, the change required law enforcement officials — starting in January 2009 — to take DNA samples from any adult arrested for or charged with any felony.

In Thursday's decision, Kline, along with Justices James Lambden and James Richman, sided with convicted arsonist Mark Buza, who argued that the mandatory cheek swab violated his Fourth Amendment right to be free from unreasonable searches and seizures.

The panel saw a red flag in seizing the DNA at a time when the defendant was presumed innocent. And Kline rejected a comparison to fingerprinting arrestees, saying that historically that was done for identification purposes and not to solve crimes. Courts haven't as rigorously tested the constitutionality of fingerprinting, so conflating it with DNA sampling is problematic, he wrote.

The court disputed the usefulness of the state's growing DNA library in solving crimes. "But even if DNA testing of arrestees was demonstrably valuable to law enforcement, the effectiveness of a crime-fighting technology does not render it constitutional," Kline wrote in the 44-page opinion.

"We are reviewing the court's opinion and will determine the appropriate course of action," Shum Preston, a spokesman for the attorney general's office, said in a statement.

The DNA question is a hot one — in September, the Ninth Circuit U.S. Court of Appeals is set to rehear a case involving DNA collection as a condition of pretrial release.

"We're very hopeful that the state Supreme Court will take this case and take it soon, because there are lives at stake," said Jayann Sepich, founder of DNA Saves, a group that advocates for DNA testing laws.

"We feel confident that the state Supreme Court will uphold arrestee testing," added Sepich, who became an advocate for testing laws after her daughter was raped and murdered in New Mexico in 2003.

The case is People v. Buza, A125542.
Avv. Antonino Sugamele

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