Elizabeth Haskell v. Edmund Brown, Jr.

HASKELL; Reginald Aida Elizabeth Jr.; Jeffrey Lyons,

Ento; Patrick Desai, on of themselves

Aakash behalf situated, similarly Plain

and others

tiffs-Appellants, HARRIS,* Attorney General

Kamala D. Steinberger, California; Assis Eva Programs, Bureau Chief for

tant Justice, Department De

California

fendants-Appellees.

No. 10-15152. Appeals, Court of

United States

Ninth Circuit. July 13, 2010.

Argued and Submitted 2, 2011. June

Submission Withdrawn 1, 2011. Nov.

Resubmitted 23, 2012.

Filed Feb. (argued), T. Risher American

Michael Foundation Union Civil Liberties * California, pursuant R.App. Fed. P. prede- eral of for her D. Harris substituted Kamala Brown, cessor, 43(c)(2). Attorney Gen- G. Edmund California, Francisco, Inc., Opinion SMITH, San by Judge

Northern MILAN D. JR.; by CA, Judge Eric Dissent WILLIAM A. Long, and Peter Meier and A. C. FLETCHER. LLP, Francisco, CA, Hastings Paul San plaintiffs-appellants.

for the OPINION Powell, Deputy Attorney Daniel J. Gen- SMITH, Judge: M. Circuit Harris, (argued), Attorney eral Kamala D. Plaintiffs-Appellants Elizabeth Aida California, Humes, General M. James Haskell, Ento, Reginald Jeffrey Patrick General, Deputy Attorney Chief Jonathan Jr., Lyons, (collectively, and Aakash Desai Renner, K. Attorney Senior Assistant Gen- Plaintiffs) appeal district court’s denial eral, LeLouis, L. Constance Supervising injunction of their for a preliminary motion General, Deputy Attorney and A. Enid stop the enforcement of the 2004 General, Camps, Deputy Attorney San infra, Amendment, to California’s DNA Francisco, CA, defendants-appel- for the and Forensic Identification Data Base and lees. (DNA Act), Bank Act of Data Cal.Pe- Broderick, Defender, Daniel J. Federal 296(a)(2)(C), Code nal which amendment Porter, Defender, David Assistant Federal requires law enforcement to collect officers Barbour, Rachelle Writing Research and from all adults arrested for Sacramento, CA, Attorney, and T. John They felonies. contend that the 2004 Francisco, CA, Philipsborn, San for amici Amendment violates their Fourth Amend- curiae Federal Defender Eastern right ment to be free unreasonable California, and Southern Districts of Cali- searches and seizures. Attorneys Justice, fornia for Criminal and We assess the constitutionality the National Association of Criminal De- considering Amendment the “to- Lawyers. fense tality circumstances,” balancing Franklin, Jonathan S. Tillman J. Breck- privacy arrestees’ against interests enridge, Emery, and Mark T. Fulbright & samples. Government’s need for the DNA L.L.P., D.C., Jaworski Washington, for Law enforcement officials collect DNA curiae DNA amicus Saves. sample from a buccal swab of the arres- a de minimis intrusion that mouth, tee’s Schubert, Anne Locher, Marie Albert C. occurs after a law enforcement officer Scully, Jan Thorpe, and W. Scott Sacra- probable determines there is cause be- mento, CA, for amicus curiae California lieve the individual committed felo- Attorneys District Association. ny. Law analyze enforcement officers only enough DNA identify information to individual, making DNA collection sub- stantially similar to fingerprinting, law enforcement officials have used for identify arrestees, decades to without seri- Before: WILLIAM A. FLETCHER objection. Moreover, ous constitutional JR., SMITH, and MILAN D. Circuit impose signifi- state federal statutes TODD, Judges, JAMES DALE Senior cant criminal and civil penalties persons Judge.** District who misuse information. On the ** Todd, Tennessee, The Honorable James Dale sitting by designation. Senior Dis- Western Judge trict for the U.S. District Court law enforcement officers and balance, provide analysis of the other side tool for the latest scientific technolo- extraordinarily agencies effective arrestees, identify accurately expedi- officials gy enforcement available crimes, innocent and exonerate past solve identifying, arrest- tiously apprehending, factors, we weighing After these suspects. convicting criminal offenders and ing, and compelling Government’s that the conclude wrongly suspected or exonerating persons outweigh privacy far arrestees’ interests accused of crime.” Thus, we hold that the concerns. effective The 2004 Amendment became not violate Fourth does Amendment 1, usually col- January 2009. Officers on Amendment, affirm. and we from a buccal swab lect the DNA along swept an arrestee’s gently BACKGROUND coop- An inner cheek. arrestee’s failure 1998, enact- legislature the California is a misdemeanor. erate with the collection 2, 696, § Act, DNA Cal. Stat. Ch. ed the 298.1(a). § CaLPenal Code of individuals requires testing DNA which sample, Once officers collect DNA The DNA convicted of certain offenses. laboratory, which creates is sent a State local, state, and aid Act intended to The profile a DNA the arrestee. labo- “in agencies federal law enforcement profile only ratory creates for identifica- expeditious and accurate detection genetic for responsible purposes analyzing of individuals tion thirteen prosecution crimes, DNA,” other the exclu- “junk sex offenses and as markers known which are suspects being investigated are sion of who any genetic known traits. not linked crimes, and the identification for these laboratory repeat” “short tandem uses persons, particu- and unidentified missing (STR), repeated is the technology which larly children.” CaLPenal Code abducted pairs at each of the thir- sequence of base 295(c). in the teen markers. The variation num- of California’s enforcement use at each marker creates a sequences Law ber remarkably ef- proven DNA database has profile that law uses unique enforcement 1998, en- California law fective. Since person might have for identification. “One more forcement officials have identified are copies two first marker that four 10,000 by using their DNA. than offenders copies of the eight repeats long, sec- results achieved positive To build on the twenty-three cop- that are eleven and ond DNA of the through implementation third that are three long, copies ies Act, approved California voters through and so all copies long, and ten on Fingerprint, Un- Proposition the DNA thirteen markers.” United States Crime and Innocence Protection solved (3d Cir.2011) Mitchell, 387, 401 652 F.3d (the Amendment), expand- which Act banc) (en al., Henry Greely T. et (quoting requirement testing the DNA Act’s ed Family Ties: Use of Offender or “any person adult arrested include Kin, 34 Databases to Catch J.L. Offenders’ ... imme- any offense charged (2006)). & The odds Med. Ethics arrest, during or diately following sequences two share identical people booking process ... or as soon adminis- are all thirteen markers “one several arrest, but, in tratively practicable after hundred Id. billion.” ease, pend- bail any prior to release on or laboratory uploads The State then con- ing physical trial or release from DNA In- profile into the Combined custody.” Code CaLPenal finement (CODIS), a System nationwide collec- 296.1(a)(1)(A). dex 296(a)(2)(C); Proposi- §§ federal, state, DNA pro- and local urgent need tion tion cited the “critical and “Beyond STR-generated expungement files. DNA court order contain profile, CODIS records days request. after the arrestee’s Id. agency provided identifier police After the that proba- determined sample, specimen identification case, ble cause in each existed Plaintiffs number, personnel name of the and the were arrested felonies in California analysis.” with the United associated provided However, they samples. Kincade, 819 n. 8 States never were convicted the felonies for Cir.2004) (en banc) (9th (citing H.R.Rep. charged. were On October (2000)). 106-900(1), *27 No. 2009, Plaintiffs filed class-action com- profile up- When an DNA is arrestee’s plaint against the State officials ad- who CODIS, compared to loaded into the system. minister the DNA collection collected from crime scenes. “persons required class consists of who are “hit,” If the database reveals a the offend- to provide sample pursuant to sample again er DNA is tested for confir- 296(a)(2)(C) § solely as a being result of match, mation. If the confirms a test CO- felony.” lawsuit, arrested for a Their filed laboratory DIS informs the that submitted § 42 under U.S.C. the alleges that sample identity the crime scene the of of 2004 Amendment violates their Fourth matching profile, the and the labora- rights to be Amendment free from unrea- tory sends that information to law enforce- seizures, searches sonable and their ment. Fourteenth Amendment process due Only per- law enforcement officials are rights.1 They sought preliminary then mitted to access a profile, injunction enjoin to California from collect- may only identify use the DNA to criminal ing DNA samples from who people were suspects. 295.1(a); §§ CaLPenal Code arrested, but not convicted. 299.5(f). They may sample not use the to court provisionally The district certified traits, reveal other such as medical condi- 23, 2009, the class. On December tions. Unauthorized access disclosure district court preliminary denied the in- of DNA information punishable under junction, that, concluding as a matter of by up year prison State law to and a law, Plaintiffs had not demonstrated a like- $50,000. fine up of CaLPenal Code of on the lihood success merits because 299.5(i). § imposes Federal similar requirement California’s DNA collection of, penalties for unauthorized use or access does not violate the Fourth Amendment. to, 14133(c), § 42 CODIS. See U.S.C. 14135e(e). court The district also concluded that harm, allege irreparable Plaintiffs did not ultimately An arrestee iswho not con- equities the balance tipped favor victed ask either the California De- State, injunctive likely relief would partment of Justice or trial court to public interest. Plaintiffs order destroyed and the DNA timely appealed. profile § expunged. CaLPenal Code expiration individual must await the JURISDICTION AND STANDARD crime(s) statute limitations for the OF REVIEW he charged or she was before requesting expungement, jurisdiction unless We have prosecu- under 28 U.S.C. 1292(a)(1). tors charges dismiss the sooner. The We review the district appellate filings, 1. In their Plaintiffs have into their Fourth Amendment claim. merged their Fourteenth Amendment claim To facially applied and as them. suc- for clear er- factual court’s determinations Clemente, cessfully challenge, a facial City v. San mount ror. Klein Cir.2009). (9th We review set “must establish that no Plaintiffs application pre- court’s the district under which the [2004 circumstances exists injunction balancing test liminary valid,” would be United Amendment] legal and the conclu- of discretion abuse Salerno, 739, 745, v. States Stormans, Selecky, Inc. novo. sions de (1987), while 95 L.Ed.2d S.Ct. (9th Cir.2009). “To 1109, 1119 challenge only requires a as-applied their court the district determine whether Amendment demonstration discretion, reviewing court its abused the Plain- applied unconstitutional as the decision must consider whether Thus, if find that tiffs. of the relevant on a consideration based applied Amendment is constitutional has been a clear and whether there factors class, the facial provisionally certified Corp. Network judgment.” DISH error of challenge fails. also Cir.2011) (9th FCC, 653 F.3d (citation marks quotation and internal Analytical I. framework omitted). protects Amendment “[t]he Fourth people of the to be secure their right DISCUSSION houses, effects, papers, persons, may grant preliminary a A court federal against unreasonable searches sei- plaintiff the injunction if establishes Const, (emphasis zures.” amend. IV U.S. (1) on of success four elements: likelihood added). (2) merits; ir suffering likelihood of the in preliminary harm a reparable absent undisputed compelled It a (3) junction; equities tips of the balance is a “search” for Fourth DNA extraction (4) favor; injunctive re plaintiffs the See, Kincade, purposes. e.g., Amendment v. the interest. Winter public lief inis (“The compulsory F.3d at 821 n. 15 379 Council, Inc., 555 U.S. Natural Res. Def. DNA profiling extraction of blood for un 365, 7, 20, 249 129 172 L.Ed.2d S.Ct. implicates the to questionably right per (2008). the agree If district we security embodied the Fourth sonal not conclusion that Plaintiffs have court’s Amendment, and thus constitutes a the establishing their of satisfied burden meaning the of the Consti ‘search’ within element, need not the first “we consider tution.”). question us is wheth before Corp., remaining DISH Network three.” requirement DNA collection er California’s Advertise.com, 777; 653 see also F.3d 2004 Amendment is an unrea under the Adver., Inc., 974, F.3d 982 Inc. v. AOL 616 search. In line with the Constitu sonable (9th 671, Cir.2010); Reed, v. 586 Doe F.3d text, plain touchstone our tion’s “[t]he — (9th Cir.2009), n. 14 U.S. 681 aff'd analysis the under Fourth Amendment 2811, -, 493 130 177 L.Ed.2d S.Ct. the always ‘the reasonableness in all cir (2010). the particular governmental cumstances of on of Plaintiffs’ success ” The likelihood personal security.’ a invasion of citizen’s on California’s hinges the merits whether Mimms, 106, Pennsylvania v. 434 U.S. requirement mandatory collection (1977) 108-09, 330, L.Ed.2d 331 98 S.Ct. 54 Amendment, to applied the 2004 under Ohio, 1, 19, v. 392 (quoting Terry U.S. 88 con- arrestees who have been (1968)). 1868,20 L.Ed.2d 889 S.Ct. victed, Fourth Amendment. violates the the apply “totality the cir Amendment, We the 2004 challenge Plaintiffs 296(a)(2)(C), balancing test to determine cumstances” both California Penal Code Although whether a warrantless search is reason- F.3d at 946. in- Kriesel U.S. California, able. See Samson volved DNA collection from convicted fel- 2193, ons, 126 S.Ct. 165 L.Ed.2d cite no precedent Plaintiffs that would (2006) totality circum- (applying of the require “special the test needs” for DNA a man- stances test to determine whether collection to from arrestees assess con- parole vio- datory search as condition stitutionality of search conducted Amendment); lates the Fourth United purposes. Interestingly, enforcement Kriesel, States 946-47 Supreme applied totality Court even (9th Cir.2007) totality of cir- (applying circumstances to test determine mandatory col- cumstances test pretrial whether strip searches detain- felons). lection convicted federal were Wolfish, ees constitutional. Bell v. totality Under the circumstances 520, 559-60, 99 S.Ct.

test, “[w]hether search is reasonable is (1979); Mitchell, L.Ed.2d 447 also see hand, by assessing, determined on the one (selecting totality of the degree upon which intrudes analysis special circumstances over the other, privacy, and individual’s needs constitutionality test to assess the degree pro- it is needed requirement pretrial federal detain- of legitimate governmental motion inter- provide ees as a condition of Samson, ests.” 547 U.S. at 126 S.Ct. release). Accordingly, apply only (citation and quotation internal totality analysis of the circumstances omitted). marks challenge Plaintiffs’ to the 2004 Amend- ment. may Plaintiffs that con- only contend we totality sider the of the if circumstances involving compelled II. Past cases

we first find that the 2004 Amendment testing a “special exception satisfies needs” to the Kriesel, The constitutionality Fourth Amendment. In ex- of California’s re- we rejected plicitly special quirement felony the that all provide needs test arrestees applied totality samples question when we the of is a impres- the circum- DNA of first analysis However, cases, stances to the for mandatory DNA sion us.2 four we requirement collection applied totality without first deter- have the of the circum- mining special a whether need analysis existed. stances and upheld mandatory opinions 2. Two recent addressed the constitu- vide their DNA under 2004 Amendment tionality requirements, of such but we are not violates the United States Constitution. We by bound either. by not are bound for three reasons. Buza First, required federal courts are not to follow Pool, (9th v. In United States F.3d 621 1213 interpretations state courts’ of federal law. Cir.2010), three-judge panel of our court Congoleum Corp. Aktiengesells See DLWv. upheld required a federal statute that 1240, chaft, (9th Cir.1984). 729 F.2d 1242 pre-trial collection as a condition of release. Second, primarily relies on Ninth Cir banc, Buza thereby vacating case was called en dissents, controlling, majority cuit not 2011, 19, opinion. panel September On Finally, opinions. Supreme the California panel argument, an en before banc heard granted Court review of on October appeal was dismissed as Buza moot because thereby automatically pleaded depublishing guilty. defendant had Because the vacated, 8.1105(e); panel opinion Cal. Rules of rely we do Court 8.1115. not on Buza. reasoning. "Although precluded are Pool’s we from consid ering unpublished Appeal, People opinions, The California Court v. of state court we Buza, Cal.App.4th by 197 Cal.Rptr.3d are not bound them either.” Nunez (Ct.App.2011), held City Diego, that v. California’s DNA San 114 F.3d Nunez requirement (9th Cir.1997) (internal omitted). pro- Act's arrestees n. citation outweigh privacy collection, persons who have crimes the diminished by a of felonies. interests that advanced con- been convicted currently a term serving victed felon (9th Oregon, In 59 F.3d 1556 Rise release.” 508 F.3d at 950. supervised Cir.1995), re- we state that upheld provide felons to quired certain convicted Brown, recently, in Hamilton v. Most totality samples. Applying DNA blood (9th Cir.2011), we held that analysis, we conclud- of the circumstances requirement prison California’s that in violate the the statute did not ed blood provide mates must of “the re- Amendment because Fourth comports identification privacy by per- held expectations duced Fourth Amendment. one of the felonies sons convicted of Rise, Kincade, Kriesel, and Hamilton applies, the blood ex- which [the statute] DNA searches of who people involved have into relatively minimal intrusion tractions’ convicted felonies. acknowl- been We interests, pub- persons’ privacy these edge persons that convicted have lesser in preventing interest lic’s incontestable than privacy expectations persons who identifying prosecuting recidivism arrested for felonies. been See offenders, sexual murderers and Scott, States v. United ad- that a DNA data bank will likelihood (9th Cir.2006) (holding a defendant Id. at 1562. interest[.]” vance this recognizance own “out his before trial” Kincade, requirement upheld greater “far privacy has interests than a convicted certain serious people However, general probationer’s.”). DNA blood provide federal felonies sam- are principles outlined in these in- cases plurality F.3d at 840. ples. 379 totality of structive for our the circum- totality applied court en banc analysis. stances analysis and concluded the circumstances “can compelled DNA collection III. Friedman Boucher minimally as invasive— be described applying totality Before the of the cir- it bodily in terms of intrusion both analysis to 2004 Amend- cumstances lawfully occasions, and the information ment, we must Plaintiffs’ claim address Id. 838. the other side produces.” at On Boucher, 580 F.3d that Friedman test, the conclud- balancing plurality of the Cir.2009) (9th find, us requires as a helps collection ensure ed that law, of matter Amendment is complies requirements parolee a with unconstitutional. release, recidivism, “helps reduces Friedman, plaintiff Kenneth Fried- crime (cid:127)bring closure to countless victims of in pled to sexual in- guilty man Montana languished in the knowl- long who consent, at in 1980. Id. at edge large.” remain tercourse without perpetrators prison Id. He from at 839. was released parole which he was not on point at Kriesel, Similarly, upheld we supervision. otherwise under state Mon- to the federal DNA collection amendment a required tana law Friedman submit act, DNA collection requires never In March sample, but he did. persons all convicted of federal felonies. Vegas, he had moved to Las after that, totality under We held pre-trial Friedman was incarcerated as circumstances, constitutional the statute is and, charges, at the detainee on unrelated in- significant the government’s “because attorney, releasees, deputy district direction of supervised identifying terests recidivism, pro- past detective forced Friedman solving police preventing via a buccal swab. Id. No we conclude that the circumstances of that vide DNA Nevada authorized the collection of sufficiently statute case are similar to the facts DNA, any nor were there limits on the use here. We conclude Friedman differs of the information derived from Fried- significantly from this case for five rea- DNA. sued under 42 man’s Friedman sons. alleging a violation his U.S.C. First, the DNA collection in Friedman rights. Fourth The district Amendment was at whim deputy conducted of one quali- that the court found defendants had attorney, acting district without statu- immunity and fied dismissed case. Id. tory authority. Although Vegas Las We found that the Montana statute did police attempted collect the under provide police authority not Nevada statute, the Montana we held that sample, Friedman’s nor to collect did not do were allowed to so because the “special the search constitute a need” that apply Montana statute did not extraterri- from the Id. exempt Warrant Clause. Friedman, torially. See 580 F.3d at 854 Although explicitly 853-54. we did not (“Defendants were Nevada officials search- totality of the apply circumstances ing a Nevada citizen in the state of Nevada analysis, briefly the “reason- assessed for Nevada law enforcement purposes. of the ableness” Nevada officer’s actions They are justify not entitled to their distinguished the case from Kincade statute.”) search with a Montana In con- and Kriesel because Friedman was not on trast, the DNA collected California from parole police supervi- or otherwise under approved Plaintiffs statewide Accordingly, sion. Id. 857-58. we re- referendum, ballot which is “a basic instru- court, concluding: versed the district government.]” ment democratic East- warrantless, suspicion-less, forcible Enters., Inc., City lake v. Forest extraction of a DNA sample pri- from a 668, 679, 96 S.Ct. L.Ed.2d vate citizen violates the Fourth Amend- (1976); see also Southern Alameda Span- ment. The actions of the officers were Speaking Org. City ish City, Union justified ‘special under the needs’ Cir.1970) (9th (describ- exception, reliance on an extraterritorial ing the referendum “an exercise statute, general or on Fourth Amend- right through voters their traditional ment principles. The search and seizure legislation direct to override the views of Friedman’s DNA violated the Consti- their representatives elected as to what tution. interest.”). public the serves Millions

Id. 858. California voters the considered reason- very Although Friedman contains broad arrestees, of collecting ableness DNA from dicta that Plaintiffs have construed as re- in stark contrast to the search Fried- quiring to us find all DNA collection man. felony from arrestees is se per unconstitu- Second, police the in Friedman singled tional, holding its limited expressly out one a individual for search. In con- the set unique of facts in that case. See trast, the California DNA program- Act is (“Because Friedman, 580 F.3d at 851 the matic and applies to all arrestees. taking forcible of the under police California lack officers discre- these circumstances violated Friedman’s tion clearly to choose which established Fourth individuals are sub- Amendment reverse.”) added). ject rights, (emphasis to DNA collection. Because officers Thus, requires subjects Friedman us to find California the cannot choose the collection, Amendment unconstitutional if DNA potential there is far less reasonable. 59 F.3d at ing “An essen the statute arbitrary action. or for abuse requirement is to aof warrant purpose tial by assuring citi interests

protect privacy Finally, the California DNA Act is clear- or seizure subject a search zens offi- ly intended allow enforcement or not the random intrusions are such identify pur- suspects, cials to criminal agents.” government acts arbitrary approved Rise. pose expressly that we Ass’n, Ry. Labor Executives’ Skinner ‘booking’ (“[E]veryday See 59 F.3d 602, 621-22, 109 S.Ct. 489 U.S. require even procedures routinely (1989). crite “[Standardized L.Ed.2d provide fingerprint accused to merely routine” can ria ... or established [an] identification, regardless whether inves- being “a ruse for a prevent a search tigation fingerprint of the crime involves rummaging in order to discover general evidence.”). purpose It unclear what Wells, Florida v. incriminating evidence.” was in- the DNA collection Friedman 1632, 109 4, 110 L.Ed.2d S.Ct. it not because was author- tended serve Weikert, (1990); also United States see regulation. by any ized Nevada statute or (1st Cir.2007) (“Courts 1, 14 opinion en upholding In recent banc of such presence acknowledged for DNA collection requirement federal of inter balancing affects the discretion release, pretrial a condition Third ests[.]”). follow Circuit declined to Friedman be- cause “did not consider the identification Third, Friedman’s the detective “forced Mitchell, samples[.]” of DNA purpose forcefully took a swab jaw open and buccal n. agree F.3d at 413 23. We Friedman’s mouth.” from the inside of reasoning point. Third on this Circuit’s Friedman, This use of 580 F.3d at 851. in our reasonable- weighed heavily force colleague dissenting Our claims that contrast, analysis. at 856-57. ness Id. “requires us to hold that Propo- Friedman swipe the typically California arrestees Amendment,” violates the Fourth sition 69 mouths; their own thus along buccal swab yet significant over the differ- glosses he usually officials do law enforcement ences we cite between that case this Although the 2004 Amendment use force. raised one. The search in Friedman far compel officials to allows law enforcement significant more Fourth Amendment con- samples, supervisor of DNA does case before us because cerns than provide approval must first written statutory no there was authorization force, pre- “be and the force must use of search, singled one authorities out indi- voluntary ceded efforts to secure vidual, no were restrictions on and there Cal.Penal compliance with this section.” of, to, DNA informa- the access use 298.1(c)(1)(C). Code Accordingly, tion. “reasonableness” here, analysis inapposite Friedman Fourth, imposes DNA Act California us, does bind and we holding pro- its not people on who misuse penalties criminal totality the circum- apply ceed to a of information, Code CaLPenal of specific test to the facts this stances 299.5(i); safeguards no Nevada had such case. the DNA statute authorized because no theoretically collection. Friedman’s Totality of the circumstances IY. by anyone and

could have been accessed assessing totality of the cir In just identifica- purpose, used for cumstances, individual’s Rise, we balance the on access to tion. the restrictions against the Government’s privacy information in favor of find- interests weighed 1058 (11th 1274, 1278 Cir.2004); prison

interests administration and F.3d have their Samson, 848, restricted, enforcement. 547 telephone U.S. v. access Valdez (9th 126 Rosenbaum, S.Ct. 2193. 1039, 302 F.3d 1048-49 Cir.2002); occasionally be housed vio Felony privacy A. arrestees’ interests lent detainees who leave them “with facial provide The 2004 Amendment does not injuries require surgery,” that [ ] Schoelch Government carte blanche take buc- Mitchell, 1041, (8th v. F.3d Cir. anyone everyone. cal swabs from It 2010); and be “in for much lockdown as applies only persons suspi- on arrested chains, day, always a hours shackled in 23^ felony. cion a having of committed Before taking even when a shower or making give be required individuals can a buc- call, phone rarely being allowed to see 200Jp cal swab DNA under daylight and air.” breathe fresh Jeff Ger Amendment, a law enforcement officer man, at jail Conditions ‘harsh’ but court probable must that there is determine them, (Oct. change can’t Vegas Las Sun person suspect having cause to 28, 2008). suggests, The dissent without felony. committed a claim, any authority security for his of mandatory Even critics DNA sam interests and other exigent circumstances pling concede that arrestee has a intrusions, allow privacy these but not significantly expectation diminished of pri DNA sampling. Just as such intrusive Kincade, (Rein vacy. See F.3d at 864 jail-related lawfully conditions could not be J., (“Arrestees’ hardt, dissenting) privacy imposed citizens, ordinary neither does interests, too, appear significantly to be the 2004 impose Amendment reduced.”). arrest, Upon are individuals buccal DNA ordinary swabs from citizens.3 often placed jail booked and in a cell pend We allegations evaluate Plaintiffs’ bail, ing arraignment or point and at that the 2004 Amendment is unreasonable they typically subjected are to numerous against backdrop this priva- diminished degrading physical and emotional intru cy rights. claims We evaluate two distinct They may subjected sions. be to visual of privacy physical intrusion: the collection searches, Bell, body cavity 441 U.S. at 558 DNA, analysis of the and the of the infor- & n. (upholding S.Ct. 1861 searches mation sample. contained where male inmates “must lift geni [their] tals spread and bend over to but [their] physical 1. The intrusiveness of the inspection” tocks for visual vagi and “[t]he search nal and anal cavities female inmates also Nearly ago, half century Supreme visually inspected”); are v. City Bull & upheld hospital’s Court as “reasonable” a Francisco, Cnty. San 974- sample, extraction of a blood which was (9th Cir.2010) (en banc) (same); done a police “[a]t direction of officer” by guards monitored sex opposite who was investigating person suspected toilet, while shower and use the John (7th Phelan, driving son v. under the influence. Schmerber Cir. 1995); California, 758, 771, be restrained and pepper-sprayed, Ga., (1966). Garrett Athens-Clarke Cnty., 378 S.Ct. 16 L.Ed.2d 908 See that, approxi- Plaintiffs contend because expunge convicted ask the court trial mately one-third of arrestees profile are never con- from the database. Cal.Penal victed, 299(b). the § 2004 Amendment process effectively results in Code This ad- maintaining Government's a database DNA of dresses Plaintiffs’ concerns that California profiles argument of innocent citizens. profiles peo- This will build database of DNA of ignores the ple ultimately fact that an arrestee who not is who are found innocent. Skinner, types approved of intrusions that are rou- at 109 S.Ct. 489 U.S. also arrestees, (“[I]t physical tinely upon supra this visited see at is obvious skin, intrusion, in- beneath the penetrating 1057-58. privacy that soci-

fringes expectation an of 2. The use and reten- Government’s reason- recognize ety prepared is tion DNA of information case, able.”). Like the Plaintiffs this yet had not been suspect Schmerber only challenge physical not Plaintiffs of a crime. convicted swab, of the buccal but the col- intrusion pro of the information con- typical modern DNA collection lection use far less inva buccal swab—is in the sample. cedure—the tained DNA approved the blood test sive than Although phrase use the Plaintiffs DNA sam In the buccal swab Schmerber. images profile” op to evoke of “DNA briefly cotton is inserted into pling, a swab pressive cataloguing “Big Brother” our mouth; typical in the blood person’s traits, the far reality most intimate is less (such as the one addressed extraction DNA troubling. profile only A contains Schmerber), must inserted a needle be “junk thirteen DNA” markers that are not a perceptible into a blood vessel for any genetic physical linked to or trait. swab cannot amount of time. buccal identify They only are used individ unacceptable seriously be as an viewed 295.1(a) (“The ual. Cal.Penal Code See bodily integrity.4 person’s of a violation perform Department of Justice shall Amerson, 483 F.3d See United States ... analysis pursuant chapter only to this (2d (“[A] Cir.2007) cheek swab 84 n. Kincade, purposes.”); identification can taken in seconds without dis (“[T]he at profile de comfort.”); Epstein, Sur Jules “Genetic sample rived from the defendant’s blood Response to Bogeyman veillance”—The of only record the defen establishes 2009 U. Ill. Investigations, Familial identity personal infor dant’s —otherwise (“The (2009) Pol’y J.L. Tech & the qualified mation which offender can testing bodily material privacy right lawfully claim no once all least intrusive of sei perhaps (indeed, qualifying convicted offense no penetration zures—it involves lawfully once arrested booked into inconvenience.”). skin, or pain, substantial Amerson, custody).”); state Moreover, law enforcement offi California (“[A]t least in the current state of scientific perform cers allow arrestees to typically knowledge, profile the DNA derived from themselves, swab collection buccal the offender’s blood establishes in minimizing physical privacy further identity.”). a record of offender’s trusion. the minimal amount of informa- Given short, of DNA physical extraction profile, tion in a DNA we are contained technique collection using a buccal swab DNA, persuaded that as collected and little more than a minor inconvenience to Amendment, under the 2004 is sub- used arrestees, who have diminished ex- stantially indistinguishable from traditional Moreover, pectations privacy. sub- intrusive, identifying as a means of fingerprinting stantially physically both less and, incidentally, tying arrestees emotionally, many than of the other arrestees Schmerber, parties in not whether such wishes would this case are need decide As in fear, grounds among “the few who on respected.” have to be health, religious scruple might concern for S.Ct. 1826. prefer testing.... We some other means 1060 Rise,

to criminal investigations. Fingerprinting consistently See has been up- (“The Florida, Hayes held as constitutional. F.3d at 1559 information derived 811, 813-18, 1643, U.S. S.Ct. substantially from the blood is (1985); Napolitano L.Ed.2d 705 v. United same that from fingerprinting— as derived States, (1st 313, Cir.1965) 340 F.2d identifying unique marker to the indi- (“Taking fingerprints ... universally is vidual whom information is de- procedure, standard and no violation of (“[B]e- rived.”); Mitchell, 652 F.3d at constitutional rights.”); United States v. profiles developed pursuant cause Iacullo, 788, (7th Cir.1955) 226 F.2d ‘genetic the DNA Act function as finger- (“[Defendant’s] rights constitutional were prints’ used pur- identification not violated his fingerprints when were poses, pretrial arrestees and detainees taken and the trial used as a basis for privacy have reduced interests in the infor- comparison fingerprints with found on sample.”). mation derived from DNA newspapers narcotics.”); used wrap Although there are some distinctions be- 67, Kelly, United States v. 68-69 tween DNA and these fingerprints, distinc- (2d Cir.1932). Indeed, argument, at oral not implicate tions do privacy serious con- Plaintiffs’ counsel finger- conceded that include, cerns. These differences among printing does not violate the Fourth others: DNA identification more robust Amendment. Given the certain constitu- identification, fingerprint reliable than tionality fingerprinting and the clear see Attorney’s Dist. Third analogy Judi- between fingerprinting and DNA Officefor Osborne, Act, cial Dist. v. 129 identification under the DNA (2009) amended, privacy S.Ct. concerns L.Ed.2d 38 here are dimin- (“Modern substantially. ished We testing provide power- agree can with the dissent’s concession “fingerprints ful anything new evidence unlike known before.”); generally are similar.” alsoWe DNA is more often left crime quarrel no with the dissent’s statement fingerprints, scenes than enhancing thus Supreme Court has “held that investigative and, DNA’s efficacy; as em- fingerprints may not be taken unless there phasized by Plaintiffs, DNA contains a consent, warrant, or probable cause.”5 much range broader of identifying infor- mation than fingerprints and is more sus- key argument The dissent’s collapses, Nevertheless, ceptible to misuse. the rela- however, completely ignores because he reliability greater tive availability the fact that the California DNA Act clear DNA do not cognizable affect privacy ly requires that law enforcement officers (as interests individuals do not have a “pri- may only compel upon DNA collection vacy per interest” efficiency se finding of probable cause that the individu operations), enforcement and the al Moreover, has committed felony. (and potential wider usage DNA data each of four cases on which the dissent abuse) accompanying potential for is care- relies for some of his remarkable theo fully restricted the strict limitations Hayes; Davis Mississippi, 394 ries — established in the DNA Act. U.S. 89 S.Ct. 22 L.Ed.2d 676 However, disagree colleague's with suspicion suspect our able that the has committed act, dismissal as Supreme “dictum” of the Court's a criminal if there is a [and] reasonable "[tjhere clear statement support believing fingerprinting thus basis for will es- in our cases negate for the view that suspect’s Fourth tablish or connection permit 816-17, Amendment would seizures for the Hayes, that crime.” 470 U.S. at purpose fingerprinting, (1985). if there is reason- 105 S.Ct. 1643 Ortiz-Hernandez, dissent, rely slip Like the Plaintiffs (1969); States United (9th by Cir.2005); arguments challenging pery-slope and United 427 F.3d 567 Garcia-Beltran, actually does with the only 389 F.3d 864 what California States (9th compelled tak what it could with Cir.2004), samples, but do involved opposition who had been Their rests on fingerprints people of the information. ing of This cause.6 in probable hypothetical scenarios which the Gov arrested without our dis completely sample undermines to do more ernment uses the distinction interpretation of colleague’s novel senting merely identify individuals. Plaintiffs than Amendment, his reliance Fourth and Government could test suggest that agree We that on the four cited cases. cystic such as fibro the DNA for diseases Act would be unconstitu California DNA line and Alzheimer’s disease. This sis officers to collect police if it allowed tional in reasoning bleak Orwellian —framed from random citizens on by Appeal terms the California Court Cal.Rptr.3d any cause to probable be street without Buza, 1443-44, at Cal.App.4th a crime. committed lieve ig statutory the clear nores 753— however, cannot collect reality, police by Legislature, drawn limitations there determining first DNA without that there no evidence in the fact com cause that the individual probable single record a case DNA misuse in felony. mitted legis If addressing we were California. lative scheme Government fatal flaw the dissent’s nov- The other use freely person’s could of the Fourth Amendment el construction any purpose, manner and for serious entirely unsupported assumption is his could at stake. privacy interests be But information derived from com- presented open-ended are not and DNA collection pelled fingerprinting in which legislative scheme citizens’ entire with the be used connection placed on genomes are file with the Gov probable cause was found. crime for which Act, The DNA as amended ernment. authority no absolutely dissent cites Amendment, sharply the 2004 limits the misguided unprecedented this range permissible uses of the DNA reading of the Fourth Amendment. Were imposes signifi information obtained and correct, justice sys- our entire criminal he penalties upon cant criminal those who upended be because law en- tem would violate such limitations. See CaLPenal prevented forcement officers would 295.1, 299.5(f), See, e.g., §§ Code For investigative tools. using basic 299.5®. (“[T]he Weikert, at 13 504 F.3d [federal] dissenting colleague’s our example, under DNA Act offers a substantial deterrent theory, could never be allowed police by imposing abuse hypothetical such fingerprints scene to data- to match crime criminal for misuse DNA sam prints past penalty arres- collected from bases ples.”). tees. 813-14, (”[W]e say that Hayes, 105 S.Ct. at 575 cannot the district See U.S. ("[T]here probable clearly when ruled consid cause to ar court erred was no rest, ering totality upon journey police of evidence which De to the to the no consent station, placed judicial tective Anderson relied when he Ortiz- no authorization for such arrest, fingerprinting purposes.”); under formal the evidence Hernandez a detention Davis, (‘‘[T]he probable to establish 89 S.Ct. 1394 insufficient Garcia-Beltran, cause."); 389 F.3d at arrest on December State conceded that the (”[T]he police ensuing through government conceded that the Decem 12 and the detention probable cause to arrest Garcia- a warrant nor did not have 14 were based on neither ber Ortiz-Hernandez, cause”); Beltran”). probable limits argue any

Plaintiffs that California’s us and thus do not have substantial on access and use are ineffective because weight in of totality our the circumstances law data is shared with enforce- California Weikert, analysis.”); (noting at 14 F.3d via agencies ment nationwide CODIS. showing absence of evidence in the record argument This also fails because federal misuse of DNA information stored CO- imposes unautho- penalties similar DIS); Amerson, (same). If 483 F.3d at 87 of rized use CODIS. See U.S.C. occur, changes and when such future 14135e(c). Moreover, 14133(c), if § even courts will be available consider actual person an unauthorized were to access applications, facts and and determine database, infor- California’s law, constituted, whether the as then vio- junk mation available would be DNA that lates Constitution. identifies arrestees. And if the Setting parade aside Plaintiffs’ of horri- junk traits, DNA could reveal other misuse bles, California’s limited of use the DNA of that information would likewise complete and the of absence evidence by federal example, barred law. For of abuse lead us to conclude that the col- Information Nondiscrimination Genetic “junk lection of information from DNA” 110-233, of Pub.L. Act 122 Stat. significantly markers does not intrude prohibits employers health insurers and upon felony privacy. arrestees’ discriminating against from people based their genetic information. B. The pris- Government’s interests in that, hypothetically While it is possible on administration and law enforce- time, rogue at some future Government ment employees analyze record and more information, Kincade, key The Government has four extensive DNA interests see (Reinhardt, J., at 847 dissenting), weigh 379 F.3d we on the other side of balance: might or the California Legislature arrestees, crimes, identifying solving past permissible expand scope and of uses crimes, preventing future exonerating data, 845-46, the DNA see id. at we cannot the innocent.

legitimately weigh constitutionality Identification of legal arrestees regime by arguing current about hypothetical highly speculative actions The amended DNA Act’s primary pur undeniably that would violate the DNA pose identify is to arrestees. See Cal.Pe Act, Amendment, amended the 2004 (“The 295.1(a) nal Code Department job as now effect. is “[0]ur limited to perform analysis Justice shall ... resolving constitutionality pro- pursuant to this chapter only for identifica us, gram before as it is designed and as purposes”). long tion This interest implemented,” has been and we must standing unobjectionable. “[W]hen “base Hollywood decisions not on dramatic suspect upon cause, probable arrested ... concretely particular- fantasies but on his identification becomes a matter of le developed ized facts in the cauldron of the gitimate Murray, state interest.” Jones adversary process and ac- reduced to an (4th Cir.1992); see also Kincade, cessible record.” Kriesel, 508 F.3d at 947 ... (“[Tracking 838; Mitchell, see also 652 F.3d at 408 identity the primary consequence (“While acknowledge seriousness collection”). possible [defendant’s] concerns about the encompasses merely “Identification” misuse and future use of DNA samples, we name, hypothetical possibili- person’s conclude that these but also other crimes unsupported by ties are the record before which the individual is linked. “Knowl- using highly this new and effective identity may inform an officer edge offense, (or another is wanted for older suspect replace supplement) tool to ones. or mental disor- of violence has a record Plaintiffs also assert the Govern- Dist Court v. Sixth Judicial der.” Hiibel analyze “months” to DNA sam- ment takes Nevada, Cnty., Humboldt which is to show that ples, the effect of 2451, 292 186, 124 159 L.Ed.2d S.Ct. analysis DNA does advance the Gov- (2004). possibly is an arrestee “Whether in identifying ernment’s interest arrestees. critical to the in other crimes is implicated argument exaggerates This the facts: on or not to order of whether determination analysis of DNA average, Government Mitchell, trial.” 652 pending detention days, samples have been takes 31 but some 414; F.3d at see also Webster’s Third New days. five Al- processed as few as Dictionary (2002) International value, Plaintiffs though only persuasive “identity” as “the condi- (broadly defining ignore high also likelihood DNA something being tion of same technology improve substantially will described, claimed, pos- or asserted or of Moreover, processing reduce times. even claimed”). The collec- sessing a character rates, analysis processing at current for identification tion and use of DNA highly example, to a law can be effective. For Cal- substantially identical purposes an arrestee’s obtaining officer Realignment leg- enforcement ifornia’s Criminal Justice he is to determine whether fingerprints islation, 109, Stats.2011, Assembly Bill Ch. in another crime. See Johnson implicated 1, which went into effect on October (D.C.Cir. Quander, 440 F.3d 2011, requires many the transfer of State 2006) (“[T]he matching one process prisoners county jails. to To reduce over- against gov- personal information piece crowding county jails, the statute allows implicate records does not ernment prisoners to be released on their own re- Amendment.”). Fourth arrest, cognizance sixty days after their profiling that DNA Plaintiffs contend subject discretionary by to a review offi- unnecessary because law enforcement county. Collecting DNA at the time of using tradi- already identify cers arrestees county help arrest will determine However, argu- this fingerprinting. tional prisoner a is linked to other whether advantages of ignores significant ment deciding crimes before whether to release fingerprinting. Crimi- profiling over prisoner. Because release cannot oc- easily fingerprints can hide their nals arrest, days sixty cur before after 31- wearing gloves, they but cannot mask their give day average processing time will Mitchell, 414. DNA. See 652 F.3d at adequate compare counties time to arres- identify testing provides capacity “the past tees’ DNA with current and crime individuals, quickly, accurate- or to exclude data before are released. Amerson, expense.” and at reasonable ly, of identi- purposes “[F]or 483 F.3d at 89. Solving past crimes defendant, fying particular person ability accurately DNA’s remarkable dis- profile arguably a DNA the most identify sufficiently compel- arrestees is a crete, personal means of identifi- exclusive justify the 2004 Amend- ling interest Robinson, 47 People cation possible.” However, also ment. the DNA database Cal.Rptr.3d Cal.4th important other law enforcement serves (2010) (internal quotation P.3d identifying By accurately arres- purposes. omitted). Nothing in the Constitu- marks tees, helps the DNA database also solve ap- compels adopt tion us to a Luddite Solving legitimate crimes is a past crimes. proach prevent that would the Government totality catalogue in our of the circumstances forcement officials factor will have “helps bring DNA, closure to analysis because arrestees’ tool that will undoubt- long of crime who countless victims edly help prevent solve and future crimes. languished knowledge perpetra- The mere existence of the DNA data- Kincade, large.” tors remain strong base creates a deterrent effect. As Mitchell, 839; see also 652 F.3d at 414- supra, discussed it is much easier (“Collecting from arres- fingerprints criminal to cover his than it is speed investigation tees can both the any prevent being DNA from left at a of arrest and the solution of the crime A felony crime scene. arrestee is less crime for which there is a match in past likely to commit another crime in fu- CODIS.”). if ture he knows that his DNA is cata- already Law enforcement officials have See, in logued the State database. e.g., expanded used California’s database to Kincade, 379 F.3d at (stating 839 numerous crimes. As of past solve Octo- mandatory profiles DNA of convicted fel- 31, Proposition ber 2009—ten months after society’s ons “fosters in enormous interest felony 69 took arrestee DNA sam- effect— Jones, recidivism”); reducing 962 F.2d at ples police had aided California in 291 (“[T]he 311 Commonwealth’s interest in database hits. Matches from offender combatting and deterring felony recidivism DNA profiles profiles crime scene in- justifies involuntary taking of the sam- by approximately percent creased 50 be- ple and the creation of the DNA data bank 2009, Proposition tween 2008 and when as in reasonable the context of the Fourth took effect. Amendment.”). 2009, For in March example, police col- lected Donald Carter’s DNA when he was Exonerating suspects 4. innocent arrested in Sacramento possession of a By helping identify the actual perpetra- later, controlled substance. Three months crimes, tors of the DNA database also police, database, using the DNA linked allows law enforcement officers to elimi- profile his to DNA collected from a 1989 persons nate innocent suspect from lists. 80-year-old murder of an woman. Simi- Kincade, (DNA See 839 n. 38 Hernandez, larly, Rene prior who had no fingerprinting “promptly clears thousands felony convictions, August was arrested on potential suspects”); United States v. 16, felony 2009 for in assault Santa Cruz Sczubelek, (3d Cir.2005) 175, County, and his DNA was collected at that (“[T]he DNA help will to excul- time. In October the DNA database pate serving individuals who are sentences profile matched his to DNA that was col- imprisonment for crimes did not lected from the February victim of a commit help and will to eliminate individu- robbery. sexual assault and occur.”). als suspect from lists when crimes As California continues to add proven DNA databases have remarkably database, arrestees’ DNA to its law en- effective in exonerating the innocent. Ac- undoubtedly forcement officers will solve cording Project, to the Innocence there past even more crimes. post-conviction been 273 DNA exon- erations in the United States since 1989. Preventing future crimes cases, In 123 of suspects the true analysis past solves perpetrators were also identified. crimes, but it helps police prevent crimes occurring in By imple- pow- the future. The case of David Allen Jones is a Amendment, menting the 2004 law en- erful illustration of the benefits of arrestee Kincade, Jones, (Gould, F.3d at 842 n. 3 mentally dis See sampling. wrongly J., convicted janitor, concurring judgment). But abled Angeles murders in the Los 1995 for three the amended DNA Act’s cur- cannot test Blankstein, al., DNA et area. See Andrew legality light rent of uncertain future Slayings, Inmate to 12 Analysis Links law, amendments to the which themselves 23, 2004, Times, at A1. Jones L.A. Oct. Act, likely the DNA would violate He was nearly years prison. nine spent amended the 2004Amendment. after DNA collected released to the the murder scenes was linked two of CONCLUSION Dwayne Turner. of Chester profile Because the 2004 Amendment does not Turner had been arrested Although applied the Fourth Amendment as violate 1987 and his times between Plaintiffs, challenge the facial to the also collected until after he was sample was not fails because Plaintiffs cannot “establish in 2002. Id. Had the rape convicted of circumstances exists that no set of under in effect in Amendment been Salerno, which the Act would be valid.” have been likely that Jones never would 481 U.S. at 107 S.Ct. 2095. Accord- have had police because would imprisoned we hold that the district court did ingly, profile. to Turner’s DNA access determining not err Plaintiffs did injustices than greater There are few a likelihood of success on the not establish an innocent imprisonment of wrongful merits, we affirm its denial of the by a intrusion caused privacy person. preliminary injunction. minor felony of a arrestee is buccal swab society’s compelling goal of AFFIRMED. compared people are exoner-

ensuring that innocent FLETCHER, Judge, W. Circuit ated. dissenting: Balancing C. respectfully I dissent. privacy arrestee’s diminished Given the Boucher, In Friedman v. 847 interests; minimis nature of the de (9th Cir.2009), taking held that the of a in the physical intrusion entailed warrant, and with- sample DNA without swab; carefully circumscribed a buccal of a crime that the DNA suspicion out being DNA information ex- scope of the solve, violated the sample help would tracted; limits on the man- stringent Fourth plaintiffs clearly established used; may in which that information be ner rights. Proposition Amendment 69 re- law enforcement and the well-established from samples that DNA be taken quires obtaining identifying arrestees’ interest arrestees, their felony all with without further, information, and to deter future consent, no upon their arrest. There is exculpate innocent criminal acts and to warrant, for a and there is no need need balance of interests tilts arrestees —the suspicion of a crime that the DNA upholding in favor of the constitu- strongly sample help would solve. Our decision 2004 Amendment. tionality of the requires Propo- us to hold that Friedman that our decision deals emphasize We the Fourth Amendment. sition 69 violates extraction, processing, solely with DNA if were not on the Even Friedman exists, analysis presently and is as books, Proposition I conclude that would acknowledge that future de- enforced. We reasoning is My unconstitutional. 69 is alter the con- velopments the law could may tak- Act, Fingerprints straightforward. amended. stitutionality of the DNA identify en from an arrestee order to charged ened. Haskell was never with a is, him—that to determine whether he is states, crime. She “I now live with the who he claims to be. But fingerprints my might fear be falsely solely not be taken from an arrestee for an sample matched to a obtained from a investigative purpose, absent a warrant or scene, crime even if I remain completely suspicion fingerprints reasonable activist, abiding. political As a I also help would solve the crime for which he recognize the taking of DNA from those Florida, custody. taken Hayes was into during political arrested activities as an 811, 814-15, 105 S.Ct. tactic, intimidation increasing the cost of (1985); L.Ed.2d 705 Davis v. Mississippi, voicing expression.” freedom of 721, 727-28, U.S. 89 S.Ct. Reginald Ento in early was arrested (1969); L.Ed.2d 676 United States v. Ort suspicion possessing stolen (9th iz-Hernandez, 427 F.3d Cir. property. He was taken to the Sacramen- 2005); Garcia-Beltran, United States v. County jail, where a deputy sheriffs (9th Cir.2004). sample collected DNA without his con- samples are not taken arres sent. Ento deputy states that the told him Proposition tees under in69 order to iden Rather, tify them. the DNA could be taken solely are taken force if investigative for an purpose, without a necessary. states, He long my “Not after warrant or reasonable suspicion. The tak collected, charges ing of solely from arrestees against dropped me were and I was re- that purpose is invalid Hayes, under custody. leased from At no time during Davis, Ortiz-Hemandez, and Garcia-Bel my contact with law enforcement officials tran. Iwas ever informed that I could seek to my sample destroyed DNA and infor- I. Background regarding my mation DNA removed from The four plaintiffs named were arrested any databases, law enforcement based on They for felonies in 2009. compelled were the fact charges against that the me [were] Proposition provide under 69 to DNA sam- dropped.” ples immediately after their arrests. Two Jeffrey Lyons Jr. was arrested on plaintiffs of the were charged never with 16, 2009, March allegedly for trying to crimes. plaintiffs The other two were person take a from police custody during a charged felonies, with charges but demonstration outside Israeli consu- were dismissed. No warrants authorized late. He was taken to the San Francisco taking any of samples. the DNA Nor was County jail, where he was pro- ordered to there a suspicion crime that vide a sample. DNA He complied with the DNA would help solve. Lyons order. charged with a felony, Elizabeth Haskell was arrested but charge was dismissed. He states 21, 2009, March allegedly trying for to dismissed, that after the charge was “I take a person from police custody during a called the San Francisco District Attor- San peace Francisco demonstration. She ney’s office ... to help getting ask for was taken to the San County Francisco my sample DNA expunged____The wom- jail, where she was provide ordered to a an at the District Attorney’s office said sample. DNA She was told she that I would have to a file motion and that would be charged with a misdemeanor if I talk my lawyer. she should to I comply refused to then said immediately. She provided sample a my lawyer but states she would because had been paid by have refused if she had not been threat- the court I didn’t know whether I would identity, thus as- this; then use the arrestee’s said she to do she him pay have to verified, I call the if or or to determine he suggested certained know didn’t maybe office and sample. a DNA already provided defender’s has public she help me.” they would a already provided has not If the arrestee compel the arrestee sample, DNA officials a student graduate Desai is Aakash are told that provide one. Arrestees California, Berkeley. He University jail until they not be released will in Wheeler in a demonstration participated sample a DNA and that they provide on Novem- Berkeley campus on the Hall 20, 2009, tuition increases for protesting charged can be with misdemeanor ber layoffs. furloughs and as custodial provide as well one. Arrestees be refusing and took arrested Desai Campus police can used to obtain a told that force be him city jail. Desai was Berkeley to the See CaLPenal Code sample. charged jail being that he was at the told 298.1(a)-(b). § if was told that felony burglary. He judicial probable A determination sample he provide a DNA he refused required, cause for the arrest is not either with a misdemeanor charged would sample arrest or before a DNA before Desai then be increased. his bail would matter, practical Proposition As a taken. states, sample. He provided judicial determination of precludes following to court on the I went “When arrest, cause after the re- probable I learned my arraignment, Monday “immedi- quires that the be taken charges had been filed.”

that no arrest, ately following during or legislature California booking process ... as soon adminis- Act, pro- which created passed after arrest.” CaLPe- tratively practicable testing of indi- of warrantless gram 296.1(a)(1)(A). Proposition nal Code certain violent crimes. convicted of viduals desirability, or even nowhere mentions 696, § ch. 2. In Novem- See 1998 Cal. Stat. judicial of a determination possibility, Proposi- passed voters ber California the DNA prior cause probable that DNA Proposition requires tion 69. sample. convicted of from all individuals be taken 296(a)(1). § It Code

felonies. CaLPenal arrestee has been identified After the January effective provides, also collected, sample has and the DNA been felony program of the DNA expansion laboratory to a where it sample is sent 296(a)(2)(A)- § CaLPenal Code arrestees. analyzed profile. create a DNA is (C). average approximately analysis occurs ar- challenge expansion Plaintiffs sample. after collection of the one month 300,000 individu- Approximately restees. sample after the California retains in California are arrested for felonies als 295.1(c). § See analysis. CaLPenal Code are a third of them year. About each sample of the felonies for is ana- never convicted the arrestee’s DNA Once Many, including two of they are arrested. profile DNA is en- lyzed, the arrestee’s charged are never even plaintiffs, Sys- DNA Index tered into the Combined felonies. (“CODIS”). system is a tem CODIS federal, state, and local DNA databases and fin- photographed

The arrestee Sys- National DNA Index operated by the booking process. during gerprinted (“NDIS”). DNA rec- CODIS stores tem 7(21). The arres- See CaLPenal Code indexes, in- in a number of different ords to ascertain or fingerprints are used tee’s cluding an Arrestee Index and Convict identity. officials verify her Police his or Index. arrestees’ other profiles powerful California DNA and a tool to link particular are entered into the Arrestee Index. individuals to DNA traces left at crime Kincade, scenes. See 379 F.3d at 818-19 fifty govern- All and the federal states (9th Cir.2004). A comparison between participate Forty-seven ment CODIS. profiles and crime-scene DNA sam- government and the federal collect states ples performed each by week CODIS. DNA from all offenders. convicted If there a match between a crime-scene Twenty-two and the federal govern- states (a “hit”), profile ment collect DNA from some or all arres- and a DNA NDIS agencies Law submitting tees. enforcement around notifies the laboratory, which country profiles can access the DNA then forwards the match information to contained CODIS. the relevant agency. enforcement Fingerprints profile linked to the DNA are genetic CODIS uses 13 markers —in identify used to the individual whose DNA terms, technical short tandem repeat poly- profile matched a crime-scene DNA sam- (“STRPs”) morphisms create DNA —to ple. profiles. genetic The 13 markers used “ CODIS ‘were purposely selected because California conducts “familial searching” they are not associated with known using profiles in CODIS. A familial ” physical or medical characteristics.’ search profiles identifies DNA that are not Kincade, United States v. precise match to the crime-scene DNA (9th Cir.2004) (en banc) 818-19 (plurality) sample, enough but are a close match to 106-900, (quoting H.R.Rep. No. 1pt. at 36 suggest the individual whose DNA (2000)). These markers are sometimes profile may is CODIS be related to an “junk Nussbaum, called DNA.” Dr. Robert individual left DNA who at the crime Chief Medical Genetics at the Universi- that, scene. Defendants state as a matter California, ty Francisco, Depart- San policy, California does not now conduct Medicine, states, ment of “There is cur- searching familial using profiles rently no specific evidence that variants (as the Arrestee Index distinct from the any of the 13 core CODIS STRPs are Index). contend, Convict Plaintiffs howev- themselves associated with traits of func- er, that likely the State will famil- conduct tional significance.” or medical Dr. Nuss- ial searching of the Arrestee Index baum states that in some cases the infor- so, they contend, future. This is because a mation associated with these STRPs supervisor of the California program “might allow one to infer functional or has stated that all profiles California DNA other medical information.” It is possible are now entered into the Arrestee Index “junk discovered, DNA” Index, rather than the Convict and that time, some directly future to be associated easily California cannot pro- transfer those with traits of functional signifi- or medical files from the Arrestee Index to the Con- Kincade, 6; cance. See 379 F.3d at n. 818 vict Index after a conviction has been ob- also, e.g., Kolata, see Gina Reanimated tained. DNA Disease, ‘Junk’ Is Found to Cause Times, N.Y. Aug. 2010 at Al. The samples profiles DNA taken from arrestees are retained unless an ar- CODIS, Once entered into a pro- DNA successfully restee applies expunge- for may file be compared to the hundreds of Expungement ment. a lengthy, uncer- thousands of crime-scene profiles DNA al- tain, ready expensive If process. charges entered into A no pro- CODIS. DNA provides filed, file extremely an are accurate means an individual must wait until the distinguishing one individual from felony’s an- relevant statute of limitations has

1069 subject expungement. imprisonment up law are to for run for See applying before 299(b)(1). $50,000. § Depending year up a and a fine of Cal.Penal Code See 299.5(1). which the was felony for individual § CaLPenal Code The district arrested, three the statute limitations is court found that there have been no re- See CaLPenal Code years longer. or ported of misuse. instances filed, charges §§ If are an arres- 799-801. the expiration not wait until

tee often need II. v. Boucher Friedman Expunge- of limitations. of the statute Friedman, we addressed taking sought charges after the are may ment testing of DNA from an arrestee without a adjudi- a trier of fact by before dismissed suspicion warrant and of a without crime cation; a conviction has re- after been that the might help solve. Fried- dismissed; the case after the versed and pre-trial man a in the detainee Clark innocent; factually found arrestee has been County, Nevada, jail, pending prosecution been acquitted or arrestee has after the charges. on criminal Friedman v. Bouch- charged offense. CaLPenal Code (9th Cir.2009). er, F.3d 580 851 Our 299(b)(l)-(4). seeking § Arrestees ex- charges does opinion not state whether the pay expenses must their own pungement A were or misdemeanor. Las Ve- an attorney’s fees. Unlawfulness of police forcefully a gas officer took DNA ground expungement. for arrest is not sample from Friedman at direction of expungement, an ar- requesting After county Attorney Deputy District who days a minimum of must wait 180 restee wanted DNA for inclusion the Neva- can act. See before a court CaLPenal da cold case data bank. Id. at 851. Fried- 299(c)(2)(D). § The court has dis- Code brought damages § man action deny grant request or for cretion to against who took police officer The denial of a for expungement. request attorney and the district who asked non-appealable expungement order for it. defendants We held that the had by petition and cannot be reviewed for clearly violated Friedman’s established 299(c)(1). § writ. Code CaLPenal right Fourth Amendment to be free from prevent can prosecuting attorney expunge- an unreasonable search. Id. at 858. making objection. ment See CaLPe- 299(c)(2)(D). compelled previously upheld We had nal re- Code State ports samples has more convicted expunged that California Kriesel, profiles than convicted felon and de- felons. See United States (9th Cir.2007); eight requests expungement. nied for It F.3d United States (9th report expungement Kincade, does not arres- F.3d Cir. profiles. 2004) (en tee banc); Oregon, Rise v. (9th Cir.1995). However, some provides protection

California law refused to cases to a warrant extend these who have submitted DNA. individuals less, suspicionless, compelled taking of be tested create samples pre-trial DNA from a detainee. Fried profile. prohibits The DNA Act man, 580 F.3d at 856-58. We wrote that profiles use individual justifying the government interests uncon than purposes other law-enforcement-re- sented from convicted fel DNA matching. lated See CaLPenal Code present: in ons our earlier cases were 299.5(f)(1). However, § California law “The Nevada authorities extracted DNA anony- studies permit using does statistical they suspected from Friedman not because mous mis- profiles. DNA Individuals who crime, nor to aid in in violation he had committed a his profiles use of California DNA reintegration society, into as a matter forcible extraction.” 580 F.3d nor added). continuing supervision. pur- Their (emphasis of his We held such routine “ human tissue simply gather was to pose justified could not ‘the by searches be databank, objec- an law enforcement for a might mere chance that desired evidence ” an that does not cleanse otherwise tive Id. (quoting be obtained.’ Schmerber search.” Id. unconstitutional 757, 769-70, California, 384 U.S. S.Ct. (1966)). L.Ed.2d holding In majority why it gives five reasons right Fourth plaintiffs the Amendment to our in does not believes decision Friedman established, clearly our we wrote that this case. None of the reasons is control “precluded distinguish precedent interpretation to the sufficient Friedman. government that the could extract forcibly First, states, majority the “[T]he all pre-trial DNA from a mat- detainees as ... at the was whim collection conducted routine, facility security ter unrelated to deputy acting district without attorney, (emphasis considerations.” Id. at 859 add- contrast, In any statutory authority.... ed). collected California approved Plaintiffs was in a bal- statewide Third, states, majority detec- “[T]he referendum, which a ‘basic instru- lot jaw tive ‘forced Friedman’s open ” Maj. of democratic government[.]’ ment forcefully took a buccal from the swab at 1056. Op. We made clear Friedman inside of Friedman’s In con- mouth.’ ... authorizing that absence statute was trast, swipe California arrestees typically appellant’s not determinative of the Fourth mouths; swab along buccal their own claim. Amendment We wrote “adher- enforcement thus law officials do not usu- guarantee to a state ence statute does not ally Maj. Op. use force.” at 1057. Califor- compliance with the Fourth Amendment.” expressly permits nia law the use force Moore, (citing at 853 Virginia Id. 553 (as well as the use of criminal misdemean- 164, 171, U.S. S.Ct. L.Ed.2d if an charges) pro- or arrestee refuses (2008)). Further, if the action of a sample. vide a DNA See Cal.Penal Code or local pursuant state official is taken 296.1(a). Indeed, Reginald Ento, one of law, an unconstitutional state does not plaintiffs this case stated that he by matter whether that law enacted was threatened with force he de- when legislature approved directly by provide sample. clined to opinion Our voters. physical compul- Friedman describes the Second, states, majority po- “[T]he DNA, sion used take the our hold- but singled lice Friedman out one individual ing not turn on physical does the use of contrast, for a search. In the California force. held the un- compelled We search Act is programmatic, applies justi- constitutional because it could not be Maj. Op. all arrestees.” at 1056. by permissible fied ob- law enforcement That a search a single person, is of at the Friedman, jective. 580 F.3d at 853-858 official, discretion of an individual or of a all (rejecting three claims State’s group people, general mandated exception require- that an to the warrant rule, has never been a touchstone of applied). ment analysis. opinion Fourth Amendment Our Fourth, majority states, Cali- “[T]he in Friedman rely did not on the fact that Act imposes fornia DNA criminal penalties search in single of a case was people who misuse DNA rejecting government’s individual. information ...; arguments, govern- safeguards we noted that “the Nevada had no such be- routine, position ... ment’s would endorse cause no DNA col- statute authorized the

1071 Friedman, In III. Fourth Amendment Maj. Op. 1057. lection.” no concern that the officer expressed if controlling, Even Friedman were not sample might “misuse” the arrestee’s I conclude 69 vio- Proposition would that other using purposes in for the sense the Fourth Amendment. lates in the cold case than State’s placement majority emphasizes similarity The Friedman, 580 F.3d at 858. database. See, fingerprints e.g., between and DNA. Rather, that the compelled we held (“Given at 1060 con- Maj. Op. the certain in placement DNA and its of Friedman’s stitutionality of fingerprinting investigative purposes database analogy fingerprinting between clear itself, was, misuse. in and Whether Act, DNA identification under the DNA as used, sample or coerced DNA would be amended, privacy here are dimin- concerns misused, is ways in other irrelevant under substantially.”). agree finger- I that ished Friedman. Precisely prints and DNA are similar. that similarity, Proposition because of 69 is states, Fifth, majority Cali- “[T]he unconstitutional. clearly to al- Act is intended fornia DNA Fingerprints and DNA are both valuable identify officials to low law enforcement law enforcement tools. In United States ex- suspects, purpose that we criminal (2d Cir.1932), F.2d 67 Kelly, early 55 Oregon, pressly approved [v. Rise fingerprint- decision appellate upholding (9th Cir.1995)].... It is F.3d ing, fingerprinting the court held was a collection purpose what the DNA unclear identification, permissible tool of as “an was intended to serve be- Friedman of methods long extension of identification by any Nevada cause it was not authorized dealing under arrest persons used Maj. Op. at 1057. regulation.” statute or supposed or of the crimi- for real violations majority wrong stating The is Subsequent nal laws.” Id. court identify to purpose Proposition is upheld finger- have decisions the use compelled pro- who are to arrestees See, prints purposes. for identification Rather, I discuss samples. vide DNA as States, e.g., Napolitano United below, in crimi- purpose sole to assist its (1st Cir.1965) (“Taking finger- majority nal is also investigations. univer- prints those released on [of bail] of the stating purpose that the wrong procedure, violation sally standard and no in Friedman was unclear. DNA collection rights.”). of constitutional deputy that “the district attor- We wrote purpose But there are limits on ney put Friedman’s DNA sam- wanted fingerprints may taken. The Friedman, ple in a cold case data bank.” finger- has Supreme Court twice held further, wrote, We 580 F.3d at 851. there prints may be taken unless attorney “represented district deputy warrant, consent, a cause. probable had Justice Court that she Nevada 721, 722, Mississippi, Davis v. 394 U.S. the search use Friedman’s ordered (1969), 1394, 22 police in S.Ct. L.Ed.2d 676 cases,” investigation in the of cold Meridian, Mississippi, and took arrested police officer “wanted Negro fingerprints of “at least Id. an aid to solve cold cases.” as Davis, youths,” including part rape of a police required I majority, investigation. conclude that our were Unlike case. in order to arrest probable in Friedman controls this cause decision See, States, e.g., go Draper unless we Davis. v. United We are bound Friedman 307, 310, it. 3 L.Ed.2d en to overturn S.Ct. banc (1959) (“The Hayes’s They him he question crucial ... house. told that arresting officer ‘proba- police whether could either to the [the had] come station meaning of the cause’ within the voluntarily fingerprinted ble or that he to be ... to Amendment believe that Fourth would be arrested. Police then arrested had committed or was commit- petitioner station, Hayes and him to the took where (foot- ting a violation of narcotic laws.” fingerprints. police took his The omitted)). note and internal citations probable were have in required to cause Hayes. order to arrest taken fingerprints, police, Davis’s on a fingerprints matched found windowsill Hayes’s left fingerprints matched those part of the victim’s home. Based in on at at the scene of one the crimes. Id. match, that convicted and sen- Davis was part Based in S.Ct. 1643. in The prison. tenced to life Court held match, Hayes burglary convicted of fingerprint that the evidence should have battery. and that sexual The Court held it had suppressed been because been taken suppression finger- required Davis of the violation Fourth in of the Amendment. been, prints. It that there in wrote had The the state Court noted that had con- fact, “Here, wrote, probable no cause. It been ceded Davis had arrested with- Davis, probable as in was no there cause Davis, probable out cause. U.S. arrest, journey to no to the consent rejected 89 S.Ct. 1394. Court police station, judicial no authorization in argued support two reasons of taking pur- for fingerprinting such a detention fingerprints Davis’s the fingerprints —that poses.... of our None later cases of an part investigation had been taken as holding undercut the Davis that trans- fingerprints into a crime and that are a portation investigative detention particularly reliable kind of evidence. The probable the station without house cause wrote, argue Court that the Fourth “[T]o judicial or together authorization violate apply Amendment does not to the investi- 814-15, the Fourth Amendment.” Id. at stage fundamentally gatory to miscon- 105 S.Ct. 1643. purposes ceive the of the Fourth Amend- Hayes Court wrote dictum ment.” Id. at 89 S.Ct. 1394. It in some circumstances fingerprints wrote, further, find no merit in “[W]e possibly could taken probable without suggestion evidence, ... fingerprint cause. It wrote: trustworthiness, of its because is not sub- ject to the of the Fourth proscriptions foregoing implies None of the that a Fourteenth Amendments. Our decisions pur- brief detention field for the recognize no to the exception rule that pose of fingerprinting, where there is illegally seized evidence inadmissible at suspicion amounting reasonable trial, and trustworthy however relevant cause, probable imper- is necessarily the seized evidence be as an item of missible the Fourth under Amendment. 723-24, Id. at proof.” S.Ct. 1394. support There is thus our cases the view that the Fourth Amendment Florida, 811, 812, In Hayes v. permit would for the purpose seizures (1985), 105 S.Ct. L.Ed.2d fingerprinting, if there is sus- reasonable Gorda, Florida, in Punta police were inves- picion suspect that has committed a tigating burglary-rapes. a series of After act, criminal if thirty there is a reason- interviewing [and] over men who general- assailant, believing fingerprint- fit able basis for ly description “in- vestigators ing negate [Hayes] suspect’s came to consider will establish suspect.” Id. Police that crime.... principal went connection with (internal of solely purposes if it is for investi- 816-17, cita- taken 105 S.Ct. 1643 Id. omitted). in taking is a gation, tions that seizure violation of the Fourth Amendment. we have Hayes, on Davis and Relying evidence fingerprint distinguished between “identification,” meaning The of as used investiga for and for taken identification caselaw, meaning in our is the conventional v. Gar In United States purposes. tive of the Identification is determina term. (9th cia-Beltran, 864, 865 Cir. 389 F.3d name, tion of someone is—his or her who that 2004), ar government conceded along with information such as identifying probable cause for resting officers lacked birth, address, of and the like. date It nonethe arrest of the defendant. Garcia-Beltran, investiga we contrasted fingerprints, argued for the use of his less tion, attempt which was an “to connect ground that had been taken on the criminal activi alleged defendant] [the identity. merely as of his We evidence identification, was an ty,” attempt taken could be for fingerprints held that “really if who says to determine he was he not but could be purposes, identification Garcia-Beltran, 865, he is.” 389 F.3d at investigative purposes. for solely taken Rise, in Similarly, 867. we drew “consti- to the district court for a We remanded tutionally significant distinction between purpose for which the of the determination gathering of free fingerprints from Id. at 866- fingerprints had been taken. guilt un- persons to determine their of an thing year the same later We held gathering and the solved criminal offense Ortiz-Hernandez, v. in United States purposes for identification (9th Cir.2005). wrote, fingerprints “It We is F.3d persons custody within the lawful and Hayes law under Davis established 1556, investiga if are taken for v. fingerprints Oregon, that the state.” Rise 59 F.3d suppressed must tory purposes, they grounds by City on other overruled 576; Id. at see also a criminal trial.” Edmond, Indianapolis 531 U.S. Olivares-Rangel, 458 States v. United (2000) 148 L.Ed.2d 333 and S.Ct. (10th Cir.2006) (“[I]n 1104, 1115-16 Charleston, Ferguson City determining fingerprint evi whether (2001). 67, 121 149 L.Ed.2d S.Ct. suppressed, dence this case should be majority employs this case an purpose the original must determine we idiosyncratic, expansive definition of “iden- fingerprinting later De arresting tification,” including investigation within fendant; is, finger Defendant that writes, majority definition. merely part as of a routine book printed “ encompasses merely ‘Identification’ procedure or was the ing processing name, person’s but also other crimes to purpose illegal part arrest Maj. Op. linked.” which the individual is so obtaining fingerprints unauthorized De “The and use of at 1062-63. collection connected to additional fendant could be purposes sub- for identification is alleged illegal activity.”); States v. United stantially identical to a enforcement Guevara-Martinez, 755-56 obtaining fingerprints officer arrestee’s Cir.2001) (8th fingerprints (suppressing implicated is to determine whether he after an investigatory purposes taken for cause). Id. 1062-63. The ma- another crime.” probable arrest without writes, further, jority I would to DNA the law apply profiling Plaintiffs contend that already apply fingerprints. Under unnecessary law enforcement because law, if DNA taken from arrestees under already identify using arrestees officers of identifica- Proposition purposes 69 for However, However, tion, fingerprinting. traditional permissible. profiles qualifying persons ad- argument ignores significant ing this finger- many vantages profiling investiga- over evidence as easily can hide printing. necessary Criminals to solve crime tions cases wearing gloves, ”). but fingerprints by their apprehend perpetrators.... and they cannot mask their DNA. in argument Proposi- The ballot of favor added). majority’s Id. The (emphasis 69, contained the official tion voters’ easily statement that criminals “can hide focused on the pamphlet, crime-solving po- gloves” fingerprints by wearing their argument The tential DNA. ballot be- clear, already, if makes it was not clear California, “In gan, boy remains investigation that includes defini- its missing finally for two decades are identi- tion of identification. Under our caselaw’s fied. Two cold murders are solved in Kan- identification, definition of it makes no Texas, And in sexual preda- sas. serial say that hide sense to a criminal can his is captured. tor The are cracked cases identity by gloves. A criminal wearing technology police thanks to calling are committing a gloves wears while he is fingerprints century.” the 21st Ballot crime, him police identifying not while are (Nov. 2, 2004), Pamp., argument Gen. Elec. at police station. removed) Prop. in favor of 69 (emphasis idio- Proposition employs same (internal omitted), quotations citations and syncratic, expansive of “identifi- definition http://vote2004.sos.ca.gov/ available Act, cation.” in- California’s DNA voterguide/propositions/prop69-arguments. Proposition provides cludes that continued, argument htm. The ballot stat- Department California “shall Justice sample a DNA ing from an perform analysis and other forensic arrestee “is efficient helps police more ... analysis identification for identifi- investigations. conduct accurate No wast- cation Cal.Penal Code purposes.” Id.; ing chasing time false leads[.]” see 295.1(a). § Yet it is clear that DNA sam- Buza, People Cal.App.4th also ples taken under Proposition are used (2011) Cal.Rptr.3d (listing 774-75 solely investigative purposes. for The text examples).1 additional clear its Proposition makes ob- protocol The for taking jective solving crime. phrases under Proposition from arrestees 69 also “solve crime” or solving” “crime are used makes clear the samples are taken five the text of the proposition. times identification, from arrestees not for but See, II(d)(l)-(d)(2) § e.g. Prop. Cal. investigation. rather As described (2004) (“Expanding the statewide DNA above, step booking first is to take Program Database Data Bank is [t]he fingerprints, the arrestee’s which are then most to reasonable and certain means ac- police him. identify used Once complish solving effective crime in Califor- arrestee, identified the check to de- nia” and is “[t]he most reasonable and already given termine whether he has effectively certain means to crime solve as (“Law has, If II(c) sample. he no ”); additional other states.... id. at not, sample is If sample taken. he has enforcement should able to use analysis taken. sample, DNA Database ... After substantially reduce profile of unsolved arrestee’s DNA number crimes sent CODIS. [and] month, help stop quickly compar- serial crime on average, It takes a for the DNA result, (2011). Supreme granted 1. The California Court P.3d appel- has As a petition People California's review opinion court's has late been withdrawn. Buza, - Cal.4th -, 132 Cal.Rptr.3d time, colleague’s our performed. By dissenting novel inter- to be analysis Amendment, pretation has been identified. the Fourth long arrestee since Indeed, must be identified the arrestee and his reliance on the four cited cases. can be taken. his DNA before (citations Maj. Op. empha- at 1060-61 omitted). sis Court’s Supreme under the dictum Even 69 violates the Hayes, Proposition misreads majority these cases. the Hayes Under

Fourth Amendment. cases, all four there had been a indeed dictum, not be taken from an probable determination of cause for the unconsenting unless there is “rea- arrestee arrest. That determination had been suspicion” that the arrestee has sonable by necessary as a police, precon- made the criminal a act and there is committed arrests, making just dition for the it that ar- basis” to believe the “reasonable police Proposi- must be made under negate DNA will “establish restee’s Hayes 69. Supreme tion The Court and that connection with crime.” suspect’s Davis, our court in Ortiz-Hemandez 817, 105 S.Ct. 1643 470 U.S. at Hayes, Garcia-Beltran, stated that there had added). sample A DNA is not (emphasis not, fact, probable been cause. But 69 because there Proposition taken under cases police all four believed there had that the arrestee suspicion reasonable is cause, probable necessary as a pre- been criminal act and that the has committed a condition the arrests. help “that crime.” Rather DNA will solve More the issue in all four important, sample person taken because a DNA is probable cases whether there was was felony. arrested for a The DNA has been for crime for which cause the defen- as a matter of taken from the arrestee is dants had arrested. There is no such been course, for suspicion without the need probable here. Under Proposition cause any crime that the he has committed that a felony, the arrest is made for but the help The DNA is taken DNA will solve. investigate not taken to sample is that possibility there is a because investigate It taken to an- felony. crime—a crime may help solve some other probable other crime which there is no for taking the DNA police which the about It en- cause. is uncontested that the law no indeed crime that knowledge, take samples forcement who officials not even may exist. (or probable have no cause even reason- objections majority makes two The suspicion) able that the arrestee has com- First, analysis. majority this writes: Indeed, may mitted another crime. there key argument collapses, The dissent’s not even another crime. be however, completely ignores because he Second, majority writes: Act the fact the California DNA The in the nov- other fatal flaw dissent’s clearly requires that law enforcement el construction of Fourth Amend- may only compel officers collection entirely unsupported ment is his as- probable cause that upon finding the information derived sumption that a felony. individual committed has from and DNA compelled fingerprinting Moreover, four each of the cases on may only collection be used in connec- relies for some of his dissent probable tion crime for which with the [], Hayes, Davis remarkable theories — cause found. ], and Garcia-Bel- [ Ortiz-Hemandez assump- no Maj. Op. at 1061. I make such compelled taking

tran []—involved if finger- tion. It law that is established fingerprints probable without cause. lawfully example, are taken —for completely prints undermines This distinction be purposes they may Solving identification used Past Crimes — investigative purposes. for later Ortiz- majority The on relies the State’s inter- Hernandez, 577; Garcia-Bel crimes, in solving stating est that inclusion tran, I 389 F.3d at 868. assume that this profiles of arrestees’ DNA in the CODIS equally DNA applies samples. That “helps past database solve crimes.” Id. at is, taken, lawfully if a DNA above, 1063-64. As noted DNA taken investigative be used thereafter all felony from arrestees almost immedi- problem Proposition under purposes. ately after their arrest. About one-third samples lawfully 69 is are not of the arrestees are never convicted of the taken. felony for which are arrested. About two-thirds of them are. DNA of two- Davis, conclude, Hayes, I based Or- felony thirds of the arrestees would there- tiz-Hemandez, Garcia-Beltran, placed fore in the upon CODIS convic- arrestees even Proposition tion without 69. The consent, Proposition under without by Proposi- State’s interest is thus served warrant, suspicion without without tion to the extent that the DNA of committed by of crime any the arrestee arrestees who are never of convicted solve, help that the DNA will violates the felony crime, solving useful in and to the Fourth Amendment.

extent the DNA taken from those who are convicted is useful before the date of Totality the IV. of Circumstances their conviction. unconstitutionality The of Proposition 69 The majority states that ten months af- Davis, Hayes, is clear under Ortiz-Her- Proposition ter 69 took “felony effect ar- nandez, and totality Garcia-Beltran. The samples restee DNA had aided California of applied by the circumstances test the police 291 database hits.” The Id. basis majority is I therefore irrelevant. none- for this statement is a declaration of Ken- majority’s theless address application the Konziak, Laboratory neth Director and of the test to show that majority the has Manager/Leader Technical for the State of strength overstated the of in- the State’s California DNA Data Bank Program. Mr. in taking samples terests from arres- 31, 2009, Konziak states that as of October strength tees and has understated the “CAL-DNA, tool, used as an investigative the plaintiffs’ privacy interests. 10,664 10,- has recorded hits.... these Of hits, so far 291 have involved arrestee A. Interests the State submissions.” majority The on four “key relies inter- However, the “arrestee submissions” to Maj. ests” of the Op. State. at 1062. I which Mr. Konziak refers in his declara- take them turn. are tion from submissions all arres- tees, including the from submissions the 1. Identification of Arrestees two-thirds of the arrestees who will be majority The more, relies California’s inter- way convicted. Without we no have arrestees,” est in the “identification of knowing stat- many how of the 291 “hits” ing “primary that this is the purpose” were arrestees who were later convict- Proposition shown, 69. I just Id. As have ed. The hits for later-convicted arrestees the DNA taken from under analysis, arrestees should be from excluded the ex- Proposition 69 is not used to identify them. to the cept extent the hits were made Rather, solely investigate. is used because their samples analyzed were Exonerating Suspects 4. Innocent they otherwise would than earlier been. gave weight court little district in- exonerating the interest in the examples of State’s provides also majority wrote, by Proposition nocent It crimes, by Donald Carter served committed two this this interest Hernandez, stage litigation, “At that have been Rene strong. Though convicting very in the the use of DNA through solved theoretically right person can serve to ex- Maj. at 1063-64. Op. database. arrestee (or of investigat- onerate obviate the risk given examples are of six These two wrong person, ing prosecuting) in this court brief filed amicus yet has not introduced government Attorneys Association. District California that the of arrestees’ evidence examples provided of these six None has led to either increase exonera- In of them are the district court. none in false tions or a decrease aecusa- pro- were told that the F.Supp.2d arrestees. five by never-convicted tions/convietions.” vided n. 12. states that examples, the six brief pending; were charges criminal still statement, Despite the district court’s sixth, Given the the brief silent. “the majority writes that DNA data- circumstances of description briefs base also allows enforcement officers these charged in six the crimes that were persons suspect to eliminate innocent cases, that all of probable it seems six and, cases, in some to free who lists” those been, be, convicted of byor now have will wrongly Maj. Op. at have been convicted. for were arrested. the felonies greater injus- “There 1064-65. are few wrongful imprisonment tices than the of an the likely the of It is that inclusion at 1065. person.” innocent Id. felo- of California profiles never-convicted arrestees in the CODIS database under ny majority famous The uses the Chester crimes, help Proposition 69 will solve some argument support Turner its case to the presented on the evidence but based testing of arrestees never-convicted likely. not know how court we do district exonerate the innocent. David serves to for mur- Jones was convicted in 1995 three Preventing 3. Future Crimes Turner con- ders did not commit. was he was presented The district court in and a DNA rape victed of 2002 the show effective- purporting evidence DNA profile taken. Turner’s was then Proposition 69 in future preventing ness of at two of the three matched DNA collected weight.” crime, gave court it “little but the scenes, and was released murder Jones Brown, 1187, F.Supp.2d v. 677 Haskell in 2004. Turner’s DNA had prison from If (N.D.Cal.2009). wrote, court 1201 1995, likely in have it would been available be able to “Though government might the prevented wrongful Jones’s conviction. about the introduce more reliable evidence necessary 69 not for Proposition But efficacy preventing of arrestee DNA this Turner had been convicted purpose. crimes, it not so convinc- future has done felony If Turner’s DNA before 1995. litigation.” Id. ingly stage at this of the when was had been taken he convicted statement, it have even felony, could been Despite district court’s the writes, authorization of only Proposition solves without 69’s majority “DNA not the arrestees, from it would crimes, helps prevent DNA police collection past but exonerate Jones occurring have available to from in the future.” been crimes the during investigation of murders. at Maj. Op. 1064. 1078 Bell, Privacy jails.

B. Interests 441 at Plaintiffs U.S. 99 S.Ct. opposite-sex same is true mandatory Our cases upholding monitoring of prisoners while in the show- assumption testing have started “ upheld by er and bathroom the Seventh ‘severely expectations diminished ” Phelan, Johnson Circuit. 69 F.3d privacy’ who convict for those have been (7th Cir.1995) (noting Kriesel, 146 need ed of 508 F.3d at 941 crimes. See Samson, monitoring such (quoting “inter-prisoner 547 U.S. at because 2193). cases, endemic”). S.Ct. In those we have found violence super and those on parolees by majori- The other cited intrusions “ vised release ‘not entitled to the full are ty upheld exigent been panoply rights protections pos specialized For example, situations. ” Kriesel, general public.’ sessed upheld Eleventh Circuit has the restraint Kincade, (quoting at F.3d F.3d arrestee, pepper-spray but 833). case, “repeatedly placed arrestee case, however, This concerns arrestees. officers’ lives and innocents’ lives dan- All four of plaintiffs were arrested for ger by engaging police in a multi- felonies, plaintiff but no was convicted of county vehicle chase that did not end until he or felonies which she was arrest- had crashed [he] twice.” Garrett v. Ath- ed. charged. Two of them were not even Ga., Cnty., ens-Clarke An arrestee does have the same (11th Cir.2004). Rosenbaum, Valdez privacy a person general interest as in the upheld four-and-one-half month tele- Rise, population. See F.3d at 1559-60 phone-access imposed restriction on a pre- (holding booking procedures requir- those (9th trial detainee. ing fingerprint identification of arrestees Cir.2002). That imposed restriction was would applied be unlawful as per- to “free request of prosecutors prevent “to Val- sons”). But repeatedly recog- we have dez from tipping off his co-conspirators nized that an greater privacy arrestee has and, recently-issued about the indictments interests than someone who has been con- thereby, to ensure capture their with mini- See, Scott, victed. e.g., United States danger mal arresting officers.” Id. (9th Cir.2006) 863, 450 F.3d (holding 873 at 1046. that a “defendant out on recogni- his own Finally, majority cites a case de- possessed zance before “privacy trial” ... scribed a newspaper article for the interests far greater probation- than a er’s”). proposition pretrial detainees can 23)6 “in lockdown for as much as hours majority The degrad- recites “numerous chains, day, always shackled even when ing physical emotional and intrusions” to call, making shower or a phone which imprisoned subject, arrestees are rarely being and daylight allowed see Majority 1058, Op. at but it misunder- Maj. and breathe Op. fresh air.” at 1058. stands the nature of privacy interests majority The hap- misunderstands what and justifi- does not take into account the pened that case. court The did find not cations impinging on those 'interests. Instead, these conditions constitutional. The procedures invasive search upheld the court held that criminal defendant v. Wolfish, 520, 39, Bell & n. 558 not (1979) challenge could as a 1861, part 99 S.Ct. them of his 60 L.Ed.2d 447 and Francisco, Bullv. criminal trial. City Cnty. The court denied the & San defen- 595 (9th Cir.2010), F.3d justi- prejudice 971-73 dant’s motion “without were to his by fied “security the need for right and order” file a civil separate action.” Order

1079 at individual.” 379 F.3d 842 n. 3. Morgan, No. 2:07- [an] at United States (D.Nev. DNA, fingerprint says nothing Oct. “[U]nlike cr-00145-KDJ-PAL health, 2008), their person’s propensity ECF 399. about disease, gen- their race and particular plaintiffs’ majority’s assessment characteristics, perhaps their even der analogy on the be- interest turns privacy Kriesel, for certain conduct.” propensity DNA. once ob- fingerprints and We tween Kincade, at 948 F.3d (quoting F.3d from the that “information derived served J., (Gould, concurring)). n. at 842 as substantially the same sample is [DNA] Rise, fingerprinting.” that derived from majority the limited subset stresses circuits Our sister 59 F.3d 1559-60. used law enforce- genetic information observations. See made similar have profile, to establish a DNA ment so-called Mitchell, 652 F.3d States v. United However, Maj. Op. DNA.” at 1059. “junk banc) Cir.2011) (en (“Given (3rd question have notion begun “studies today, conclude in front of us record junk DNA not useful does contain solely DNA is used as profile that a Kincade, programming material.” genetic accurate, identifying marker —in unique, (citation omitted). 818 n. 6 words, twen- fingerprints for the other technology, junk advances in DNA “[W]ith Mueller, century.”); Boroian v. ty-first may reveal far extensive in- genetic more Cir.2010) (1st (“Given F.3d Kriesel, F.3d at formation.” stringent on the DNA Act’s limitations however, technology, with today’s Even profiles, creation and use of CODIS junk reveals more information than like currently functions much a traditional fingerprint. fingerprint patterns, Unlike database, law en- fingerprint permitting hereditary, do not to be appear to match one identification rec- forcement sampling reveals information about data- against others contained in the ord relationships. familial Identical twins do base.”); States, Banks v. United have the fingerprints, same but (10th Cir.2007) (“These 1178, 1192 restric- Siblings, parents, do have same DNA. allow the to use an of- tions Government children, have fin- who do not similar in substantially profile fender’s gerprints, similar DNAs. Because of way fin- same that the Government uses similarity, DNA has been used for this gerprint photographic evidence—to searching,” “familial in which law enforce- offenders, past identify to solve and future partial officials look for DNA ment recidivism.”). crimes, and to combat matches between crime scene DNA sam- But our more recent decisions have ex- profiles DNA ples and CODIS. Defen- recognized testing plicitly that DNA con- claim cur- dants that California does not greater infringement privacy on stitutes rently conduct familial on such searches Kriesel, In noted fingerprinting. than but profiles, possibili- arrestee being samples that “concerns about ty likelihood—that California will —even beyond purposes are used identification fu- begin conducting such searches legitimate.” 508 at 947-48. real and F.3d Mitchell, remains. ture But see Kincade, majority of the en banc (finding privacy at 409 n. 19 concerns testing represents found that DNA court searching “speculative”). on familial based infringement pri- significantly greater Gould, vacy fingerprinting. Judge than Conclusion concurring, finger- “unlike wrote compulsory have We never allowed and reveals massive prints, stores taking samples of DNA from mere arres- private data about personal, amounts tees. begin Proposi We should not now.

tion 69 does not taking authorize the felony from arrestees for Rather,

identification purposes. it author taking

izes the of DNA samples solely

investigative purposes. takings Such are

unconstitutional Supreme under

Court’s decisions in Hayes, Davis and

under our decisions Ortiz-Hernandez

and Garcia-Beltran. unconstitutionality

Because the Prop- cases,

osition 69 is clear under these

totality of the circumstances test that we applied involving cases convicted However,

felons is if irrelevant. I were to test,

apply the I would find the State

interests served DNA samples felony arrestees who will never be

convicted of the they for which are

arrested, and from arrestees before

are felony, convicted of that much weaker

than majority finds them. I would

find strength of plaintiffs’ privacy in- stronger.

terests much

I respectfully dissent. MATHIA,

Jean Representative Personal Doyle

of The Mathia, Estate of V.

Deceased, Petitioner-Appellant,

COMMISSIONER OF INTERNAL

REVENUE, Respondent-

Appellee.

No. 10-9004.

United States Court of Appeals,

Tenth Circuit.

Jan.

Case Details

Case Name: Elizabeth Haskell v. Edmund Brown, Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 23, 2012

Citation: 669 F.3d 1049

Docket Number: 10-15152

Court Abbreviation: 9th Cir.