The First District Court of Appeal in San Francisco has struck down a 2004 voter initiative that took effect in 2009 that required anyone arrested on suspicion of a felony to be swabbed on an inner cheek for genetic material, which would then be forwarded to a database accessible to state and local police and the FBI.
“A significant percentage of all felony arrestees are not in fact convicted; whatever the basis of the initial arrest, many of these arrestees are legally innocent of any crime,” the court ruled. “Yet their DNA profiles remain in the state and federal databanks, and their DNA specimens and samples in the DOJ Laboratory, in perpetuity, unless and until they are able to successfully negotiate a lengthy and burdensome expungement process that is far from guaranteed to succeed.”
The court argued, “Against this intrusion into individual privacy rights, the governmental interest in DNA testing at this early juncture in the criminal process is problematic.”
“The governmental interest advanced most vigorously by the Attorney General is the effectiveness of DNA testing 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,” the ruling continued.
Last year, then-Attorney General Jerry Brown called DNA evidence “the fingerprint of the 21st century” and declared, “This is no more a violation of privacy than you have when you give up your fingerprints.”
However, Mark Buza, was convicted and sentenced to a six-month sentence after he refused to give a DNA sample after he was arrested in January 2009 for setting fire to a San Francisco police car. At the time he was ” informed that refusal to provide a sample would constitute a misdemeanor with which he would be charged.”
Mr. Buza was later convicted of arson and served a 16-month prison sentence for that crime. In court he argued, “He did not commit his acts maliciously, he testified, but to protest what he considered a corrupt government and system and to call attention to a political group he had formed, whose web sites had been ‘deleted from the Internet.’ “
On appeal of the misdemeanor conviction he argued, “The seizure of his DNA at a time when he was entitled to the presumption of innocence, and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his Fourth Amendment right to be free from unreasonable searches and seizures.”
The appellate court agreed with that legal argument.
The purpose of the DNA Act “is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.”
The court added that the 2004 election measure “significantly enlarged the scope of persons subject to warrantless DNA searches by, among other things, providing that, beginning on January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for or charged with any felony.”
Pursuant to the DNA Act, collection of DNA must take place “immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody.”
The court noted that there is a process for expungement “if he or she ‘has no past or present offense or pending charge which qualifies that person for inclusion within the . . . Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile.’ “
However, at the same time they found the process to be “rather lengthy.” The individual must wait for the statute of limitation to run before requesting “expungement; the court must then wait 180 days before it can grant the request; the court’s order is not reviewable by appeal or by writ; and the prosecutor can prevent expungement by objecting to the request.”
The courts have routinely ruled that the collection of DNA evidence is at most “minimal intrusion into an individual’s privacy interest in bodily integrity.”
The court adds, “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ “
And the courts have adopted a totality of the circumstance test to determine reasonableness. For instance, convicted offenders have a broad range of restrictions and thus have “severely constricted expectations of privacy relative to the general citizenry.”
But in this case, the question is whether people with the presumption of innocence should be required to submit simply by way of accusation in the form of an arrest.
It is interesting to note the former Attorney General’s comment on fingerprinting, because this case actually turns on the fact of “an analogy between fingerprinting and DNA testing that ignores vast differences in the amount and type of personal information each procedure reveals.”
They add, “The view of DNA testing as analogous to fingerprinting is also problematic because the practice of fingerprinting on arrest, though routine, has never been subjected to Fourth Amendment analysis under the tests that must be used to analyze the constitutionality of DNA sampling. “
The primary purpose of fingerprinting is to establish the identity of the individual. The court argues, “DNA collection does not serve this purpose. The sampling process mandated by the DNA Act is not an efficient means of establishing who a person is, because DNA taken upon arrest cannot be used immediately for that purpose.”
Instead, the court ruled that DNA evidence is collected with the hope of linking arrestees to other crimes, or to crimes they might commit in the future.
They write, “And because the DNA Act authorizes retention of DNA samples as well as the profiles derived from them, those retained samples can be used to criminally investigate persons whose DNA was obtained upon arrest many years earlier, even if they were never criminally charged or were acquitted.
They add, “In addition, it is unclear how much the DNA testing of arrestees at this early stage even supports the investigative function that is the only governmental interest it actually serves.”
The court ruled, “What the DNA Act authorizes is the warrantless and suspicionless search of individuals, before a judicial determination of probable cause to believe they have committed a crime, for evidence of crime unrelated to that for which they have been arrested. “
J. Bradley O’Connell told the San Francisco Chronicle that the court drew a crucial distinction between arrest and conviction.
“Before you’re convicted, the only legitimate intrusions upon your freedom and privacy are those that are directly related to the prosecutorial needs of that specific case,” O’Connell said. The DNA searches are unrelated to the arrest and are conducted “in hopes of getting lucky and tying the arrestee to some wholly different crime,” he said.
Attorney General Kamala Harris has the option to appeal the ruling to the court, but her office is in the process of reviewing the case and has declined any comment.
Jayann Sepich, mother of murder victim Katie Sepich, namesake for Katie’s Law, expressed disappointment with the California Court of Appeals decision
“This decision marks a significant step backwards for victims of crime and for general public safety in California. We expect police to correctly identify persons in custody who may be violent criminals that should not be released. Fingerprints, mug shots, and social security numbers are all collected for identification purposes in any arrest — why should police not collect a simple cheek swab to compare against the DNA database in our most serious crimes?” she said.
She added in a statement, “I look forward to an appeal in this case, and given the significant threat posed to victims and potential victims by this decision, I sincerely hope the State Supreme Court will take up the matter with due speed.”
She believes her daughter’s killer “could have been caught shortly after he raped and murdered my daughter if a DNA sample had been taken on arrest for another offense.”
On the other hand, groups like the ACLU have argued, “Anyone wrongfully arrested becomes part of a permanent criminal database. Someone arrested for misdemeanor becomes a suspect for life. Americans who have not been proven guilty under state laws go into a DNA database with criminal offenders.”
They fear that the purpose of such collection could move from criminal investigation to population surveillance.
—David M. Greenwald reporting
Interesting decision. My thought was that to do DNA swabs on anyone arrested seems a colossal waste of money. Wouldn’t it be better spent on making sure every defendant has the right to DNA testing to prove their innocence?
Everyone who is arrested gets fingerprinted. Then when a crime occurs and police (or CSI) find a fingerprint at the scene of a crime, they can check the computer database to find out who left that fingerprint, and hopefully solve a crime.
I support the mandatory fingerprinting system for all arrested and feel the exact same way about collecting a DNA swab (rubbing a q-tip inside a person’s cheek). The information harms no one … but the guilty. The DNA info simply goes into a database (called CODIS) and it will never be used unless DNA is found at the scene of a crime and it matches the DNA collected from arrestees.
From allcriminalschoolsjustice.com:
[quote]Some DNA tests are relatively inexpensive. You can take a paternity test for $80. But for DNA fingerprinting to be admissible in court, the price skyrockets to $500 to $600. This becomes expensive if it must be done on multiple suspects.[/quote]
[quote]They add, “The view of DNA testing as analogous to fingerprinting is also problematic because the practice of fingerprinting on arrest, though routine, has never been subjected to Fourth Amendment analysis under the tests that must be used to analyze the constitutionality of DNA sampling.”[/quote]And, they’re meaning what? That they could very rule the same way about taking of fingerprints if the question ever showed up on their desks?
Elaine, do you know whether all swaps go to a lab promptly (or are set aside until the investigation moves on to a likely trial)? And that the $500 test is run, rather than the cheapest one that would eliminate the suspect?
This reminds me of the arguments against use of radar and intersection cameras. If we require “beyond a doubt” proof, why reject technology that helps assure that the wrong people aren’t found guilty and the true perps are identified? What harm is there?
Back to fingerprints, there are all sorts of print sets around that were taken for non-criminal purposes (security clearances, lost children kits, etc.). Seems as though these would/could be in state or national databases.
I find it unsettling that a person can be arrested, but never charged, for a crime and have their DNA held in a database.
It seems unfair that if the arrestee wishes to have his/her DNA removed from the database, it is incumbent upon the arrestee to initiate the process in the form of a hearing request, which will not guarantee the arrestee’s DNA will be removed anyway.
SM: My thoughts as well.
Rifkin
There is a major difference between fingerprinting and DNA collection beyond just the manner in which it is collected.
unlike fingerprints, DNA has many potential uses beyond identification. It contains a wealth of medically relevant information which could be used for other than law enforcement purposes. If you think such a possibility is unlikely, I would point out that pharmaceutical companies will pay large amounts of money for prescribing patterns and other information that we would probably just as soon not share.
While I am sure the police would offer statements that this would never occur, where is the guarantee that someone on the inside, or an outside hacker would not see an opportunity to turn a profit in ways in which we cannot foresee. I have no problem with keeping DNA specimens on convicted criminals, but we have protections for those presumed innocent and should not be quick to surrender them.
If law enforcement want to use someone’s dna without conviction to try to catch them in a past or future crime, that in my opinion is equivalent to the “lying in wait” enhancement that they pursue for someone who has ambushed another. With that reasoning, why stop there? Why not take a mandatory dna sample from babies being born straight out of the hospital? ridiculous.
Tecnichick,
Well, that strategy would certainly be a money saver down the road. Just think of the time and money saved on the identification of the dead if every one’s DNA were on file ! Ok, I apologize. Docs tend to have a bit of a morbid sense of humor.
[i]”I find it unsettling that a person can be arrested, but never charged, for a crime and have their DNA held in a database.”[/i]
I am not unsettled by this. However, let me concede for argument’s sake that there is some real danger in the police having a DNA record on someone like myself who has never been convicted of any crimes. There is also, clearly, some real danger in not letting the police collect DNA from those who are convicted.
I know, for example, that Ted Bundy was arrested, but not convicted for quite a few crimes before he finally was convicted of murdering quite a number of women. In the period from which he was let go for burglary and auto theft, he killed and raped dozens of young women.
Now of course there was no DNA technology back in the mid-1970s. However, had there been, and had they collected his DNA when he was still just a burglar, the police could have tied him to his first series of murders in Washington state (for which he never was tried or convicted). Stopping him in his early stages would have spared dozens of his victims. Not collecting DNA today, from latter day Bundys who have yet to be convicted of a serious offense, means that such men will be able to commit a great number of heinous crimes in the interim, because when we find his DNA on the first of those victims we won’t know whose it was.
As such, we should be trying to strike a balance: try to minimize whatever dangers there are of the police having the DNA of those of us who are not criminals with the dangers of the police not having those DNA samples.
I have never heard of an actual problem (as opposed to a theoretical problem like Medwoman brought up) with the police misusing the DNA database. But if such problems have taken place, then we ought to deal with them.
Rich,
You are correct in thinking this was.a hypothetical on my part. I tend to be very cautious however about the protection of the rights of the innocent. I am also cautious regarding the “tough on crime”philosophy and it’s unintended consequences such as 3 strikes. Your point about Bundy is well made. The trick, as always is in the balance.
This is a bit off topic, but the subject of DNA and everyone giving samples made me think of it. At least 20 years ago, maybe more, Joseph Wambaugh (the guy who is most famous for his book, The Onion Field) wrote a very intense book, non-fiction, about a serial killer in England. I don’t recall all the details, but I remember the guy who did it was named (not kidding) Mr. Pitchfork. The book, I think, is called The Blooding. I should Google it. (Just did: The Blooding is the title. Written in 1989.)
Before this case, there had never been a crime solved using DNA analysis (if my memory of the story is right). The police in a small English village knew that the murderer had to live in this one village, based on certain evidence. They also knew he was male. But they were otherwise stumped. And he kept killing and killing. So a scientist convinced them that they could solve the crime if they used his DNA sampling system.
They agreed, but had another problem: they lacked a DNA database. So one by one they went to every man in that village and asked for a saliva sample. All but one man, Mr. Pitchfork, agreed to give his saliva. They knew at that point that the one guy who refused, Pitchfork, was highly suspicious, and they kept an eye on him. They then tested the others against the DNA left at the crime scenes by the murderer/rapist, and no one came up a match.
In the meantime, they somehow got a sample of Mr. Pitchfork’s DNA–I don’t remember how they got it, but I think it was a court order–and not surprisingly he was the one and only match and he was convicted on the basis of his DNA. If I recall correctly, he was only convicted of two murders, because those were the two they had the DNA evidence from the victims, but he killed many more women. (It is weird how these psychopaths always want to kill women or children.)
Rich,
Maybe not so hypothetical after all . Check out today’s NPR story “Anonymous Claims Law Enforcement Website Hack”.
Not about DNA this time, but ripe as a future target.
[quote]”If you think such a possibility is unlikely, I would point out that pharmaceutical companies will pay large amounts of money for prescribing patterns and other information that we would probably just as soon not share.”[/quote]medwoman, would you please explain this for us non-medwomen and men. How can these files be used by companies? What info. is in your DNA that you’re trying to hide?[quote]”Anyone wrongfully arrested becomes part of a permanent criminal database. Someone arrested for misdemeanor becomes a suspect for life.”[/quote]This is an odd argument from the ALCU. If the database is expanded to include innocent people, it wouldn’t be a “criminal database.” And, the database even now is not a listing of “suspects for life.”
I’m having difficulty seeing any personal invasion here, and am almost ready to volunteer my spit. Taking a swab at birth to accompany the SSN each baby gets doesn’t seem such a bad idea, either.
A technology that excludes people who might otherwise be convicted by bad police work, witnesses, confessions, juries seems like something we should embrace. What a great concept Rich offers–arrest the serial killer before he strikes again and again.
“I am not unsettled by this. However, let me concede for argument’s sake that there is some real danger in the police having a DNA record on someone like myself who has never been convicted of any crimes. There is also, clearly, some real danger in not letting the police collect DNA from those who are convicted.”
I think you miss the point, I don’t believe the court struck the law allowing police to collect DNA from those convicted, only those who were not convicted.
[quote]This is an odd argument from the ALCU. If the database is expanded to include innocent people, it wouldn’t be a “criminal database.” And, the database even now is not a listing of “suspects for life.”
I’m having difficulty seeing any personal invasion here, and am almost ready to volunteer my spit. [/quote]
I mean that would be the counterpoint, have the government collect everyone’s DNA. I certainly wouldn’t want the government to have my DNA for a whole variety of reasons.
JustSaying
First,let me explain what is happening now, and then at the risk of sounding too much like science fiction author, I’ll get into what I could foresee.
Right now pharmaceutical companies buy from pharmacies lists of individual doctors prescriptions (by drug, not patient, so far).
They can then look for prescribing patterns so that they can target their sales pitches to doctors more efficiently. This usually goes something like, our new, and very expensive version of this drug, should be prescribed, rather than the old (and proven effective) but now with a generic equivalent form. Unfortunately, it has been shown that doctors are susceptible to these pitches.
Right now your DNA can be used as a gold mine of information about what medical conditions you may be susceptible to in the future. The best known of these is the genetic mutations BRCA1 and BRCA2 which greatly increase a woman’s risk of developing breast and/or ovarian cancer. At present, testing for this mutation is a very difficult decision for many women because while testing positive and having early removal of the ovaries can be life saving, testing positive can currently be interpreted by insurance companies as a preexisting condition for which they can deny coverage.
Now, on to my projections for the future. Genetic risk assessment is currently in it’s infancy. We will likely find many more diseases to have specific genetic markers. So one example staying with the insurers for a moment. Diabetes is a widespread condition in our country now and will only increase exponentially given our current rates of childhood obesity. It is also incredibly expensive to treat because over a persons lifetime, it results in multi organ failure. Let’s suppose that a genetic marker is found and insurance companies have access to it ( and the provision of the health care reform bill that prevents exclusion for preexisting conditions gets overturned) then the insurers would simply not insure or charge exorbitant rates to , not only known diabetics, but also anyone who carries the genetic marker. Never mind that the most common form of diabetes is almost completely preventable with maintenance of an appropriate weight through sound dietary choices and exercise.
Moving on to the pharmaceutical companies. Anyone with a television knows that the adds for specific types of drugs (antidepressants, Viagra for example) have increased dramatically over time. I can only believe that this is happening because the ads are cost effective. Now let’s suppose that a drug company has your specific genetic information. They can pitch directly to you all kind of drugs, some of which might be useful, some of which you might never need, and some of which because of those pesky inevitable side effects, might actually be harmful. They can also pitch their most expensive new product while something that has been around for 50 years, is equally effective with a proven safety profile, and costs a few pennies instead of a few dollars per pill is readily available at the drug store. But if course, sharing that bit of information with you would hurt their bottom line, so they won’t.
Now the idea of a national, all inclusive DNA data base is intriguing from the research point of view. It would offer the hope of eventually being able to target what conditions were likely to be the most prevalent in the future. This would allow us to allocate research funds much more proactively andefficiently than is now the case. In an ideal world this could be done anonymously thus avoiding any potential privacy issues. but of course that would render it useless for both commercial and law enforcement purposes.
[i]”I think you miss the point, I don’t believe the court struck the law allowing police to collect DNA from those convicted, only those who were not convicted.”[/i]
I understand what the court did. I just think, as a matter of public policy, I want everyone who is arrested for a crime serious enough to take that person’s fingerprints to also have a swab of his saliva taken, too.
Someone above mentioned the cost consideration. I don’t know enough about that to say if the benefit is worth the cost. If it is not, I would change my conclusion on this. However, what I don’t buy is the “slippery slope” argument that having those arrested for crimes give a saliva swab is an invasion of their privacy or puts them at some other serious risk due to the government somehow using their DNA sample for harmful or undue purposes.
You (and your ACLU colleagues) seem to believe that this is a question of civil rights: whether the government has the right to obtain evidence (DNA) in a case where you were not convicted which later could be used against you in a different case. As you know, I don’t agree with the civil libertarians. My belief is that this is a balancing act, and that no one who is innocent will be harmed by giving up a DNA swab. (I would be happy to give my own saliva right now. However, I do get the notion that there are good practical reasons of cost why the police don’t want to have to process the DNA swabs of 300 million Americans.)
One thing I just thought of which supports the ACLU theory: that if the cops can take a DNA swab of those arrested but not convicted, then the police may have some incentive to arrest many people who they think are “suspicious” but have no recent criminal records. The cops could then take the DNA from those people and drop the charges against them. If they are innocent of past crimes and commit no future crimes, then the fact that the cops took their DNA will not hurt them. Nevertheless, getting arrested for a crime where there is no evidence you had anything to do with that crime is a clear violation of a person’s civil rights. And so incentivizing the police to do with for “suspicious” people does seem like a problem with the policy I advocate. I am not sure what the best answer to that is. But I think laws should be set up to seriously punish any police officers or agencies which have a pattern of doing that sort of thing.
[quote]Elaine, do you know whether all swaps go to a lab promptly (or are set aside until the investigation moves on to a likely trial)? And that the $500 test is run, rather than the cheapest one that would eliminate the suspect? [/quote]
I don’t absolutely know the answer to this question, but my sense is that DNA evidence is stored in airtight containers indefinitely, until it is decided to do a DNA test. Hence you have situations where DNA evidence was preserved from long ago, before DNA tests were even available or the technology was even invented, that has been later tested and exonerated innocent defendants. DNA apparently does not “degrade”. However, it is also my understanding that DNA testing is quite expensive, at least the type that is used in trials. From listening to the entire O.J. Simpson trial, I do know there are two types of DNA testing, and one is more expensive than the other. The most expensive type of testing is much more reliable and definitive. Usually DNA testing is not done unless it is necessary to prove the case, bc of the expense. Fingerprinting, on the other hand, is cheap by comparison.
This was interesting from wikipedia, which should give everyone pause:
[quote]However, with any DNA technique, the cautious juror should not convict on genetic fingerprint evidence alone if other factors raise doubt. Contamination with other evidence (secondary transfer) is a key source of incorrect DNA profiles and raising doubts as to whether a sample has been adulterated is a favorite defense technique. More rarely, chimerism is one such instance where the lack of a genetic match may unfairly exclude a suspect.
[edit]Evidence of genetic relationship
It’s also possible to use DNA profiling as evidence of genetic relationship, but testing that shows no relationship is absolutely certain. While almost all individuals have a single and distinct set of genes, rare individuals, known as “chimeras”, have at least two different sets of genes. There have been several cases of DNA profiling that falsely suggested that a mother was unrelated to her children.[12]
[edit]Fake DNA evidence
This section does not cite any references or sources. Please help improve this section by adding citations to reliable sources. Unsourced material may be challenged and removed. (May 2010)
The value of DNA evidence has to be seen in light of recent cases where criminals planted fake DNA samples at crime scenes. In one case, a criminal even planted fake DNA evidence in his own body: Dr. John Schneeberger raped one of his sedated patients in 1992 and left semen on her underwear. Police drew what they believed to be Schneeberger’s blood and compared its DNA against the crime scene semen DNA on three occasions, never showing a match. It turned out that he had surgically inserted a Penrose drain into his arm and filled it with foreign blood and anticoagulants.
[/quote]
Let me clean that quote up. Again, from Wikipedia, which should give everyone pause:
[quote]However, with any DNA technique, the cautious juror should not convict on genetic fingerprint evidence alone if other factors raise doubt. Contamination with other evidence (secondary transfer) is a key source of incorrect DNA profiles and raising doubts as to whether a sample has been adulterated is a favorite defense technique. More rarely, chimerism is one such instance where the lack of a genetic match may unfairly exclude a suspect.
[edit]Evidence of genetic relationship
It’s also possible to use DNA profiling as evidence of genetic relationship, but testing that shows no relationship is absolutely certain. While almost all individuals have a single and distinct set of genes, rare individuals, known as “chimeras”, have at least two different sets of genes. There have been several cases of DNA profiling that falsely suggested that a mother was unrelated to her children.
Fake DNA evidence
The value of DNA evidence has to be seen in light of recent cases where criminals planted fake DNA samples at crime scenes. In one case, a criminal even planted fake DNA evidence in his own body: Dr. John Schneeberger raped one of his sedated patients in 1992 and left semen on her underwear. Police drew what they believed to be Schneeberger’s blood and compared its DNA against the crime scene semen DNA on three occasions, never showing a match. It turned out that he had surgically inserted a Penrose drain into his arm and filled it with foreign blood and anticoagulants.
[/quote]
This from wikipedia was also very interesting:
[quote]In the United States, it has been accepted, courts often claiming that there was no expectation of privacy, citing California v. Greenwood (1985), during which the Supreme Court held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. Critics of this practice underline the fact that this analogy ignores that “most people have no idea that they risk surrendering their genetic identity to the police by, for instance, failing to destroy a used coffee cup. Moreover, even if they do realize it, there is no way to avoid abandoning one’s DNA in public.”[31][/quote]
Just for comparison from state of Wyoming website:
[quote]2. How much does it cost to check for a Wyoming criminal history? For most applicants, the fee is $15 for the state of Wyoming which includes the Western Identification Network criminal history check. If an FBI criminal history check is performed in addition to the state of Wyoming there is an additional fee of $24.00. For persons who are fingerprinted at the Division of Criminal Investigation, or at a local Wyoming law enforcement agency, they may also be charged $5 for the fingerprinting service.[/quote]
S-Man:
California Penal Code Section 299 sets forth the criteria for DNA Database sample expungement. Expungement can be accomplished easily and quickly when a DNA sample qualifies for removal from the State database and a person provides sufficient documentation of his/her identity, legal status and criminal history to the California Department of Justice, DNA Database Program (CAL-DNA). A petitioner whose sample qualifies for DNA database sample expungement and who provides appropriate documentation can expedite the process so that neither a court hearing, nor a 180-day waiting period permitted by Section 299, likely will be necessary.