THE PEOPLE,
A125542
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 12/3/14
CERTIFIED FOR PUBLICATION; (San Francisco County Super. Ct. No. SCN 207818); Opinion on remand from Supreme Court
The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank
We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the California DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act‘s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon
FACTS AND PROCEEDINGS BELOW
Shortly after 3 o‘clock on the morning of January 21, 2009, San Francisco Police Sergeant Jody Kato saw an orange glow emanating from a parked police car. When he realized the vehicle was on fire he saw a man, later identified as appellant, pop up from behind the vehicle and run into a nearby wooded area holding something in his hand. When another officer called out for him to surrender, appellant stepped out of the woods with his hands up. A search of the wooded area produced a road flare and a bottle containing a mixture of oil and gasoline. Matches were found in appellant‘s pocket and a container of oil was found in his backpack. A fire department investigator concluded that all four tires of the patrol car had been damaged by fire, and traces of polystyrene, gasoline residue and/or medium weight oil were found on two of the tires.
Several hours after his arrest, while he was confined in county jail and prior to any appearance before a magistrate or judge, appellant was asked to
On February 17, 2009, appellant was charged by information with arson (
With respect to the first three counts, appellant admitted at trial that he set fire to the patrol car‘s tires using a mixture of oil, gasoline, and styrofoam as an accelerant. He did not commit his acts maliciously, he testified, but to protest what he considered a corrupt government and system and to call attention to a political group he had formed, whose web sites had been “deleted from the Internet.”
As to the fourth count, shortly after appellant‘s arrest and while he was in county jail, San Francisco Sheriff‘s Deputy Kenneth Washington advised appellant that state law required him to provide a DNA sample, which would be obtained by swabbing the inside of his cheek with a cotton-tipped swab. When appellant stated he did not wish to provide a sample, Deputy Washington showed appellant a
On April 22, 2009, appellant unsuccessfully moved for judgment of acquittal on count 4, contending that his arrest for a felony offense does not create a constitutionally adequate basis for requiring him to provide a biological sample.
On April 30, 2009, the jury returned a verdict finding appellant guilty of all counts. That same day, the court ordered appellant to provide a DNA sample prior to sentencing. On May 28, 2009, after learning of appellant‘s refusal to comply with this order, the court issued an order permitting the San Francisco
Appellant was sentenced to the low term of 16 months in state prison on count 1, with an additional concurrent 16-month sentence on count 2, and a concurrent six-month county jail term on count 4, refusal to provide a DNA sample. A 16-month sentence on count 3 was stayed pursuant to
After this court reversed the conviction on count 4, the California Supreme Court granted respondent‘s petition for review (People v. Buza, S196200, Oct. 19, 2011), held the case pending the United States Supreme Court‘s decision in King, supra, 133 S.Ct. 1958, then returned it to us for reconsideration. (People v. Buza, S196200, January 16, 2013.)
DISCUSSION
I.
The Statutory Scheme
California law enforcement officials have been authorized to collect forensic identification blood, saliva or buccal (cheek) swab samples from persons convicted of certain serious crimes since 1984. (See former
At the November 2004 General Election, California voters amended the DNA Act by enacting Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. That measure significantly enlarged the scope of persons subject to warrantless DNA searches by, among other things, providing that, beginning on January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for or charged with any felony. (
Pursuant to the DNA Act, collection of DNA must take place “immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody.” (
After the sample is taken, it is sent to the DNA Laboratory of the California Department of Justice (DOJ), which is responsible for the management and administration of the state‘s DNA and Forensic Identification Database and Data Bank Program and which stores, correlates and compares forensic identification samples for use in criminal investigations. (
The profile derived from the DNA sample is uploaded into the state‘s DNA data bank, which is part of the national Combined DNA Index System (CODIS),3 and can be
accessed by local, state and federal law enforcement agencies and officials. (Brochure, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure>; FAQ, supra, Searching the CAL-DNA Data Bank and CODIS <http://oag.ca.gov/bfs/prop69/faqs>.) When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a “hit,” the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and ndis-fact-sheet>.) The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. (Ibid.) CODIS also performs weekly searches of the entire system. (The FBI and DNA, Part 1 <http://www.fbi.gov/news/stories/2011/november/dna_112311>.)
The DNA Act specifies that samples and profiles may be released only to law enforcement personnel and contains penalties for unauthorized use or disclosure of DNA information. (
The expungement process, however, is neither quick nor guaranteed. An arrestee may request expungement if the relevant charges are dropped before adjudication, after
the statute of limitations for filing an accusatory pleading has run, or after being found factually innocent or not guilty of the offense. (
DNA
II.
The Fourth Amendment and Maryland v. King
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” (
at p. 1969 [buccal swab]; Schmerber v. California (1966) 384 U.S. 757, 767-771 (Schmerber) [blood]; People v. Robinson, supra, 47 Cal.4th at p. 1119 [blood]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616-617 [breathalyzer and urine sample]; Cupp v. Murphy (1973) 412 U.S. 291, 295 [finger nail scrapings].) The physical intrusion involved in the buccal swab procedure used in the present case has been viewed as minimal. (King, at p. 1969.) The collection of the DNA sample, however, is only the first part of the search authorized by the DNA Act; the second occurs when the DNA sample is analyzed and a profile created for use in state and federal DNA databases. The latter search is the true focus of our analysis.
Federal and state statutes authorizing collection of DNA samples from persons convicted of qualifying offenses have been upheld universally by federal and state courts, albeit with significant debate and disagreement among the judges who decided these cases. (E.g., Banks v. United States (10th Cir. 2007) 490 F.3d 1178; United States v. Weikert (1st Cir. 2007) 504 F.3d 1; United States v. Amerson (2nd Cir. 2007) 483 F.3d 73; United States v. Hook (7th Cir. 2006) 471 F.3d 766; Johnson v. Quander (D.C. Cir. 2006) 440 F.3d 489; United States v. Conley (6th Cir. 2006) 453 F.3d 674; United States v. Kraklio (8th Cir. 2006) 451 F.3d 922; United States v. Sczubelek (3rd Cir. 2005) 402 F.3d 175; Groceman v. U.S. Dept. of Justice (5th Cir. 2004) 354 F.3d 411; United States v. Kincade (9th Cir. 2004) 379 F.3d 813 (Kincade); Wilson v. Collins (6th Cir. 2008) 517 F.3d 421 [Ohio]; Nicholas v. Goord (2nd Cir. 2005) 430 F.3d 652 [New York]; Padgett v. Donald (11th Cir. 2005) 401 F.3d 1273 [Georgia]; Green v. Berge (7th Cir. 2004) 354 F.3d 675 [Wisconsin]; Rise v. Oregon (9th Cir. 1995) 59 F.3d 1556 (Rise) [Oregon]; Jones v. Murray (4th Cir. 1992) 962 F.2d 302 [Virginia]; People v. Robinson, supra, 47 Cal.4th at p. 1121; State v. Hutchinson (2009) 2009 ME 44, 969 A.2d 923, 932; State v. Martin (2008) 184 Vt. 23, 46, 955 A.2d 1144; State v. Bartylla (Minn. 2008) 755 N.W.2d 8, 18; State v. O‘Hagen (2007) 189 N.J. 140, 914 A.2d 267, 280-281.)
These cases emphasize, on the one hand, that convicted offenders are subject to “a ‘broad range of [restrictions] that might infringe constitutional rights in free society’ ” and have “severely constricted expectations of privacy relative to the general citizenry”
(Kincade, supra, 379 F.3d at pp. 833-834; see United States v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947 (Kriesel)), including no reasonable expectation of privacy in their identity. (Kincade, at p. 837; Kriesel, at p. 947; Hamilton v. Brown (9th Cir. 2010) 630 F.3d 889, 895; Rise, supra, 59 F.3d at p. 1560; People v. Robinson, supra, 47 Cal.4th at p. 1121.) On the other hand, the government has a strong interest in identifying and prosecuting offenders and, in the case of those on supervised release, promoting rehabilitation and protecting the community. (Kincade, at pp. 833-835 [parolee]; Kriesel, at p. 947 [probationer]; Hamilton, at pp. 895-896 [inmate].) Accurate identification has been viewed as serving the governmental purposes of returning conditional releasees to prison if they reoffend, reducing recidivism through the deterrent effect of DNA profiling, and solving past crimes (Kincade, at pp. 838-839; Kriesel, at pp. 949-950), as well as avoiding erroneous convictions (People v. Robinson, at p. 1121).
In King, the United States Supreme Court moved beyond the realm of convicted offenders, rejecting a Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with “serious crimes.” (King, supra, 133 S.Ct. at p. 1970.) King described the “legitimate government interest” served by the Maryland DNA law as “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” (Ibid.) The court viewed a suspect‘s “identity” as including not only “his name or Social Security number” but also his or her criminal history, the latter being “critical” for the police to know when processing a suspect for detention because “[i]t is a common occurrence that ‘[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.’ ” (Id. at p. 1971.) For this purpose, the court stated, “the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.” (Id. at p. 1972.) “DNA is another metric of identification used to connect the arrested with his or her public persona, as reflected in records of his or her actions that are available to the police,” producing “a more comprehensive record of the suspect‘s complete identity.” (Ibid.)
Employing this definition of “identity,” the court saw DNA identification of arrestees as helping ensure safety in a custodial setting by allowing law enforcement officers to “know the type of person whom they are detaining” and “make critical choices about how to proceed.” (King, supra, 133 S.Ct at p. 1972.) DNA information could help law enforcement assure an arrestee‘s availability for trial by indicating arrestees who had committed more serious offenses in the past and might be more inclined to flee in order to avoid investigation that could expose the other offenses. (Id. at pp. 1972-1973.) The information could also inform bail decisions, because an arrestee‘s “past conduct is essential to an assessment of the danger he poses to the public.” (Id. at p. 1973.) Acknowledging that it may take some time to obtain the results of DNA testing, the court observed that actual release often does not occur for a considerable time after the decision to release is made, information about the arrestee‘s “identity and background” could be relevant to conditions of
On the other side of the balance, the court held that the privacy expectations of a person taken into police custody ” ‘necessarily [are] of a diminished scope.’ ” (King, supra, 133 S.Ct. at p. 1978, quoting Bell v. Wolfish (1979) 441 U.S. 520, 557.) “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, . . . his or her expectations of privacy and freedom from police scrutiny are reduced.” (King, at p. 1978.) After finding the physical intrusion imposed by buccal swab minimal (id. at p. 1979), the court offered three reasons for concluding that the processing of the DNA sample did not intrude upon privacy rights in an unconstitutional manner: Only noncoding portions of the arrestee‘s DNA, which would not reveal genetic traits, were analyzed; even if additional information could be gleaned from the DNA tested, the DNA was not in fact tested for such purposes; and testing for any purpose other than identification was prohibited. (Id. at pp. 1979-1980.)
In sum, the court held, “In light of the context of a valid arrest supported by probable cause resрondent‘s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee‘s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (King, supra, 133 S.Ct. at p. 1980.)
In a piercing dissent, Justice Scalia explained for himself and the three other dissenting Justices that the King majority‘s interpretation of the Fourth Amendment departed markedly from prior Fourth Amendment jurisprudence by allowing the search of a person for evidence of a crime for which he or she has not been arrested, in the absence of any reason to think the person is
Justice Scalia elaborated: “As ratified, the Fourth Amendment‘s Warrant Clause forbids a warrant to ‘issue’ except ‘upon probable cause,’ and requires that it be ‘particula[r]’ (which is to say, individualized) to ‘the place to be searched, and the persons or things to be seized.’ And we have held that, even when a warrant is not constitutionally necessary, the Fourth Amendment‘s general prohibition of ‘unreasonable’ searches imports the same requirement of individualized suspicion. See Chandler v. Miller [(1997)] 520 U.S. 305, 308.
“Although there is a ‘closely guarded category of constitutionally permissible suspicionless searches,’ id., at 309, that has never included searches designed to serve ‘the normal need for law enforcement[.]’ Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. at p. 619 (internal quotation marks omitted) Even the common name for suspicionless searches--‘special needs’ searches--itself reflects that they must be justified, always, by concerns ‘other than crime detection.’ Chandler, supra, at 313-314. We have approved random drug tests of railroad employees, yes--but only because the Government‘s nеed to ‘regulat[e] the conduct of railroad employees to ensure safety’ is distinct from ‘normal law enforcement.’ Skinner, supra, at 620. So too we have approved suspicionless searches in public schools--but only because there the government acts in furtherance of its ‘responsibilities . . . as guardian and tutor of children entrusted to its care.’ Vernonia School Dist. 47J v. Acton, supra, 515 U.S. at p. 665.
“So while the Court is correct to note (ante, at 1969 - 1970) that there are instances in which we have permitted searches without individualized suspicion, ‘[i]n none of these cases . . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.’ Indianapolis v. Edmond [(2000)] 531 U.S. 32, 38. That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form ‘reasonableness’ inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court‘s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong.
“The
[(2009)] 556 U.S. 332, 343-344; Thornton v. United States [(2004)] 541 U.S. 615, 632 (Scalia, J., concurring in judgment). Neither is the object of the search at issue here. [¶] . . . [¶] “At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).” (King, supra, 133 S.Ct. at pp. 1981-1982 (dis. opn. of Scalia, J.).)
The King dissenters highlighted critical issues we will return to later in this opinion, in particular the court‘s novel view of identification and its acceptance of the analogy between DNA testing and fingerprinting. Even aside from criticism of the court‘s underlying assumptions, however, we find it difficult to view King as controlling the outcome of the present case because of significant differences between the California DNA Act and the Maryland law. These include that the DNA Act applies to persons arrested for any felony, requires immediate collection and analysis of arrestees’ DNA even before a judicial determination of probable cause, and dоes not provide for automatic expungement of DNA data if an arrestee is not in fact convicted of a qualifying crime. While judicial opinions do not ordinarily indicate their applicability to disputes arising under different statutes or presenting different facts, the King majority stated its intention to create a rule of national application despite acknowledging differences in the “particulars” of various states’ DNA testing statutes. (King, supra, 133 S.Ct. at p. 1968.)5 But it did so apparently without considering the ramifications of such differences, several
of which render its reasons for upholding the Maryland law completely inapplicable to California‘s.
In addition, the difference in expungement provisions affects the weight of the arrestee‘s privacy interests. Unlike the automatic expungement provisions of the Maryland law, California puts the burden on the arrestee to seek expungement, and outcome of the expungement process is not guaranteed. As the likelihood of expungement decreases, or the length of time necessary to obtain expungement increases, the privacy intrusion imposed by the government‘s retention of the DNA profilе and sample increases.
Another difference between the statutes is that Maryland expressly prohibits familial DNA searches--searches in which a partial match between an individual‘s DNA
profile and a profile in the DNA database is used to implicate a close biological relative of the DNA donor as a possible criminal suspect. (King, supra, 133 S.Ct. at p. 1967; Md. Pub. Saf. Code Ann. § 2-506(d).) California does not. As we later discuss, this difference is significant because familial DNA searching has nothing to do with “identifying” the DNA donor and has no use other than criminal investigation. At present, as a matter of policy, California limits familial DNA searches to DNA from convicted offenders. But this restriction is not imposed by the DNA Act.
The DNA Act also differs from the Maryland law in that it applies to all felony arrestees rather than a subset limited by the serious nature of the crime
In our view, the differences between the California and Maryland DNA laws significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment. We need not decide whether these differences require a different resolution of the issue from that of the King majority, however, as we focus our analysis instead upon the California
Constitution.6 Our conclusion that
III.
The DNA Act‘s Arrestee Provisions Violate the California Constitution
Like the Fourth Amendment,
constitutional analysis, the California Constitution is “a document of independent force.” (People v. Brisendine (1975) 13 Cal.3d 528, 549-550 (Brisendine); see, People v. Fields (1996) 13 Cal.4th 289, 298 [double jeopardy]; American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 325-326 (American Academy) [privacy].) Further, the California Supreme Court has held that
While our Supreme Court has recognized a “general principle or policy of deference to United States Supreme Court decisions” in interpreting provisions of the California Constitution that are textually parallel to those of the federal Constitution (Raven, supra, 52 Cal.3d at p. 353), “even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper interpretation of the state constitutional provision is not invariably identical to the federal courts’ interpretation of the corresponding provision contained in the federal Constitution. (See, e.g., Raven[, at pp,], 352-354; Brisendine, supra, 13 Cal. 3d [at pp.] 548-551.)” (American Academy, supra, 16 Cal.4th at pp. 325-326.) Deference is not required when ” ‘cogent reasons,’ ‘independent state interests,’ or ‘strong countervailing circumstances’ that might lead our courts to construe similar state constitutional language differently from the federal approach.” (Raven, at p. 353.) And where California authority establishes that the California Constitution provides greater protection, the United States Supreme Court‘s
This point is made explicit in our state Constitution: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”
(
Indeed, as our Supreme Court has explained, the independence of state Constitutions is fundamental to principles of federalism and demonstrated by history. (Brisendine, supra, 13 Cal.3d at pp. 549-550.) “It is a fiction too long accepted that provisions in state Constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding рrovisions of the first state Constitutions, rather than the reverse.” (Id. at p. 550; see People v. Monge (1997) 16 Cal.4th 826, 872 (dis. opn. of Werdegar, J.).) “The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials.” (Brisendine, at p. 550.) Thus the Brisendine court stated that “in determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution,” it was “simply reaffirming a basic principle of federalism--that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.” (Id., at pp. 550-551.)
Our Supreme Court has enumerated several factors to consider in deciding whether a provision of the state Constitution should be construed differently from a parallel provision of the federal Constitution. In People v. Teresinski (1982) 30 Cal.3d 822, the court
language or history of the California constitutional provision in question suggested that the issue before us should be resolved differently than under the analogous federal constitutional provision. (Teresinski, at p. 836.) Second, the decision in question did not overrule past precedent or limit previously established rights under the United States Constitution. (Teresinski, at p. 836.) Third, the decision was unanimous, and had not inspired extensive criticism. (Id. at pp. 836-837.) Fourth, the decision, if followed by the courts of this state, would not overturn established California doctrine affording greater rights in the particular area. (Id. at p. 837.) (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 510-511.)
These factors all militate against applying King‘s analysis in the present case. First, as we have said, the California Supreme Court has historically construed
Respondent contests appellant‘s right to pursue a claim under the
A.
The DNA/Fingerprint Analogy
The nature of the information at issue in DNA analysis is critical to assessment of the interests at stake in this case. Cases upholding DNA statutes invariably rely heavily on analogizing DNA testing to fingerprinting. (E.g., Rise, supra, 59 F.3d at p. 1559; United States v. Amerson, supra, 483 F.3d at p. 87.) King viewed DNA analysis simply as “an advanced technique superior to fingerprinting in many ways.” (King, supra, 133 S.Ct. at p. 1976.) But “DNA contains an extensive amount of sensitive personal information beyond mere identifying information[.]” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 381; see, Simoncelli, Dangerous Excursions: The Case Against Expanding Forensic
In general, like King, the cases upholding mandatory collection and processing of DNA have unjustifiably dismissed concerns about the extent of the personal information contained in DNA samples by limiting their attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability. (See, King, supra, 133 S.Ct. at pp. 1979-1980.) We have already mentioned that California currently uses the information contained in DNA profiles for purposes other than identification in familial searches based on convicted offenders’ DNA, a point we will discuss in detail later. The fact that investigators in California are able to conduct familial DNA searches—using the CODIS loci to discover a new suspect—disproves the King majority‘s assumption that “the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee” and “alleles at the CODIS loci ‘are not at present revealing information beyond identification.’ [Citation.]” (Id. at p. 1979.) Familial searches also disprove the King majority‘s assumption that
But even accepting that the amount of personal information contained in the profile developed from noncoding portions of DNA is limited,9 the far greater danger to privacy lies in the DNA samples from which the CODIS profiles are developed, which, as we have said, contain the entire genome. DOJ‘s laboratory is required to collect and store the blood specimens, buccal swab samples and other biological samples from which DNA profiles are derived. (
Moreover, as we will explain, the Act places few restrictions on the law enforcement uses to which such information may be put. (See discussion, post, at pp. 33-34.) This raises questions both about the kind of personal and private information that may be derived from the DNA samples in the DOJ‘s possession, and the uses of that biometric data as scientific developments increase the type and amount of information that can be extracted from it. For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify
Further, as familial DNA searching demonstrates, DNA can be used to incriminate persons other than the suspect or offender from whom it is taken, while the information derived from fingerprints is limited to that one individual. In short, because the only information revealed by fingerprinting is a person‘s identity, and DNA analysis has the potential to reveal every aspect of the person‘s genetic make-up, fingerprinting presents no threat to privacy comparable to that posed by DNA analysis.11
Identification and Investigation
Like the four dissenting Justices in King, we are unwilling to accept the premises that analysis of arrestees’ DNA is intended or in fact used for identification rather than investigation, or that “identification” encompasses investigating criminal history. The King majority‘s construction of a new governmental interest in “identity” that includes not only verification of who an arrestee is but also what that person has done in the past allowed the court to elevate the “governmental interest” side of the balance in weighing the law‘s promotion of “legitimate governmental interests” against its intrusion on arrestee‘s reasonable expectation of privacy. Because this definition of “identity” folds investigation into identity verification, and because DNA testing at the time of arrest does not further actual identity verification, the court‘s analysis distorted the “totality of the circumstances” required to be examined in measuring the reasonableness of the search at issue.
The premises that arrestees’ DNA is used for identification and that identification includes criminal history permitted the King majority to view DNA testing of arrestees as falling within the established warrant exceptions for searches incident to arrest and booking. The result, as the dissenters explained, eviscerated protections against suspicionless searches long recognized under both the federal and state Constitutions. “The real expansion of warrantless search power in King is ‘its reimagination of the idea of “identity” to include criminal history and other information.’ ” (State v. Medina (2014) ___ A.3d ___ Vt. 69 [2014 Vt. LEXIS 71, *42] (Medina) quoting DNA Testing[, supra,] 127 Harv. L.Rev. at p. 177.)
The King court relied upon the principle that ” ‘[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.’ ” (King, supra, 133 S.Ct. at p. 1971, quoting Michigan v. DeFillippo (1979) 443 U.S. 31, 35.) And “[b]ecause proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the ‘governmental interests underlying a station-house search of the arrestee‘s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest.’ ” (King, at p. 1974, quoting Illinois v. Lafayette (1983) 462 U.S. 640, 645.)
But, as Justice Scalia pointed out, the scope of a search incident to arrest is limited to weapons, easily destroyed evidence and evidence relevant to the
As Justice Scalia explained, it has been an established principle that warrantless searches without individualized suspicion may not be upheld where the ” ‘primary purpose’ ” of the search was ” ‘to detect evidence of ordinary criminal wrongdoing.’ ” (King, supra, 133 S.Ct. at pp. 1981-1982 (dis. opn. of Scalia, J.), quoting City of Indianapolis v. Edmond, supra, 531 U.S. at pp. 37-38, 44.) Justice Scalia noted that the DNA search in King served the purpose of ” ‘identifying’ King” only if “what one means by ‘identifying’ someone is ‘searching for evidence that he has committed crimes unrelated to the crime of arrest.’ . . . If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search.” (King, at pp. 1982-1983 (dis. opn. of Scalia, J.).)
By common understanding, “identification” means verifying who a person is. The Oxford English Dictionary defines the term as the “action or process of determining what a thing is or who a person is.” (5 Oxford English Dict. (2d ed. 1989) p. 619, col. 1.) In the context of fingerprinting, courts have drawn a distinction between identification—fingerprints taken “to verify that the person who is fingerprinted is really who he says he is,” and investigation—fingerprints taken “to connect [the person fingerprinted] to a crime with which he was not already connected.” (United States v. Garcia-Beltran (9th Cir. 2004) 389 F.3d 864, 867.) Fingerprints that are validly obtained for purposes of identification can later be used as evidence or in an investigation. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 865.) Fingerprints obtained as a result of an illegal arrest are not subject to suppression if they were taken “solely to establish [the arrestee‘s] true identity.” (Garcia-Beltran, at pp. 865-866.) But suppression is required if fingerprints were taken as a result of an illegal arrest for an ” ‘investigatory’ purpose, i.e., to connect [the arrestee] to alleged criminal activity . . . .” (Id. at p. 865; see Hayes v. Florida (1985) 470 U.S. 811; Davis v. Mississippi (1969) 394 U.S. 721.)
Identification in the sense of identity verification was from the outset the purpose of fingerprinting arrestees. The police began using fingerprinting as part of the booking process in the early 1900‘s, as a reliable way to identify
The DNA collection and testing mandated by the DNA Act, however, does not serve this purpose, because DNA collected from an individual upon arrest cannot be used immediately to establish who that individual is. Before law enforcement can obtain information about an arrestee from DNA testing pursuant to the DNA Act, the DNA sample must be analyzed and a DNA profile created and run through a database. (CODIS Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and- ndis-fact-sheet>.) The majority opinion in King noted the assertion in the amicus brief of the State of California that ” ‘DNA identification database samples have been processed in as few as two days in California, although around 30 days has been average.’ ” (King, supra, 133 S.Ct. at p. 1973.)12 By contrast, fingerprints submitted electronically to the national fingerprint and criminal history system administered by the FBI yield a response in about 27 minutes. (Integrated Automated Fingerprint Identification System (IAFIS), Federal Bureau of Investigation <http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis> [as of Dec. 1, 2014].)13 Additionally, DNA profiles in the data bank are not identified by name or case information; after a hit is made, the law enforcement agency must contact the laboratory that submitted the DNA sample to obtain
California uses the California Identification System (Cal-ID), the automated system maintained by the DOJ for retaining fingerprint files and identifying latent fingerprints. (
California‘s protocol for DNA collection and analysis confirms that DNA is not used to verify who a person is. Far from relieving law enforcement agencies of the need to take fingerprints, the Act requires collection of a right thumb print and a full palm print of each hand, as well as a DNA sample. (
Moreover, DNA samples are not taken from arrestees who have already had samples taken (FAQ, supra, Qualifying Offender Verification Criminal History Flags/Samples Taken, Rap Sheet “Flags” and Offender Verification <http://oag.ca.gov/bfs/prop69/faqs>), which shows that an arrestee‘s identity must be verified in some other fashion before a DNA sample can be collected. It also demonstrates that, as a practical matter, law enforcement agencies do not need or use the DNA taken at arrest for identification purposes.
That DNA testing is not needed to verify an arrestee‘s identity is unsurprising. Fingerprints can be and are used for this purpose; the only time DNA would be better suited or more accurate would be the very rare situation in which an arrestee has gone to the trouble of physically altering his or her fingerprints. In the words of the Vermont Supreme Court, “The current system of photographs and fingerprints fully responds to the need for identification of the defendant. In the many cases now consolidated in this appeal, the State has identified none in which there is a need for more accurate identification.” (Medina, supra, 2014 Vt. LEXIS 71, *32)
Not only are DNA profiles neither necessary nor helpful for verifying who a person is аt the time of arrest, the fact that DNA testing cannot be used to immediately verify a person‘s true identity confirms that collection of a DNA sample at arrest has another purpose.14 Despite the language in the DNA Act
Although Proposition 69 twice declared the state‘s compelling interest in “accurate identification of criminal offenders,” the findings section of the proposed law makes clear that its critical purpose was crime-solving. (Ballot Pamp., Gen. Elec. (Nov. 2, 2004), text of Prop. 69, p. 135.) The findings identified a “critical and urgent need” to furnish law enforcement “with the latest
Further, the text of the DNA Act does not restrict the investigatory uses to which DNA specimens, samples, and profiles may be put by law enforcement agencies. Despite the provision in the DNA Act that the DOJ “shall perform DNA analysis . . . only for identification purposes” (
Apparently, the only limitation imposed by the Act‘s references to “identification” is a prohibition against analysis and use of DNA for non-law enforcement purposes relating to matters such as an individual‘s health, propensity for certain diseases or conduct, gender, or race. (See Kincade, supra, 379 F.3d at pp. 837-838; id. at p. 842, fn. 3 (dis. opn. of Gould, J.)) In other words, DNA is to be collected and analyzed for “identification” purposes in the sense that the only information that is supposed to be drawn from DNA samples is that which identifies the donor. But this identifying
Indeed, California is already using DNA information collected from convicted offenders for investigatory purposes completely unrelated to any definition of “identification” of the person from whom the DNA was taken. California was the first state to permit deliberate familial DNA searches, intentionally using DNA profiles to investigate the donor‘s close relatives as possible perpetrators.17 Law enforcement agencies are able to identify likely family relationships through “partial matches” of DNA profiles because of the distinctively high number of alleles shared by family members. Since every person inherits one allele at each of the 13 CODIS loci from each of his or her biological parents, everyone shares at least 13 alleles with each parent, and more if both parents happen to possess the same allele at one or more loci. (See Greeley et al., Family Ties (2006) 34 J.L. Med. & Ethics 248, 249-252.) It has been estimated that on average, a Caucasian parent and child (a population for which good published data exists) share 15.7 alleles of the 26 profiled in CODIS, and full siblings share an average of 16.7 alleles. (Id. at pp. 252-253.) In contrast, unrelated persons share an average of 8.7 alleles. (Id. at p. 252.)18 While a number of states and the federal government permit use of partial matches discovered fortuitously in the course of routine database searches, California is one of the few that allow deliberate searches for this purpose. (Fortuity, supra, 63 Stan. L.Rev. at pp. 753, 764, 767-769.)
California law enforcement agencies have engaged in
In sum, the
C.
Arrestee Searches Under Article I, section 13, of the California Constitution
As we have said, the scope of permissible searches of arrestees is one of the specific areas in which
Adhering to its own precedent, the Brisendine court explained, “In choosing between these irreconcilable rules we cannot accept the Robinson implication that ‘an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.’ ” ([People v. Robinson, supra,] 414 U.S. at p. 237; Powell, J. concurring.) Whatever may be the merit of that view when an individual is ultimately to be booked and incarcerated—a question not presented here—we find it inappropriate in the context of an arrestee who will never be subjected to that process.” (Brisendine, supra, 13 Cal.3d at p. 547.) Accordingly, Brisendine reaffirmed and followed “the decisions, exemplified by Simon, which impose a higher standard of reasonableness under
These cases particularly emphasized the need to protect against warrantless exploratory searches for evidence unrelated to the crime of arrest. In Brisendine, the court observed that an ostensible search for weapons that was “merely a facade designed to provide justification for an exploratory
Respondent argues that Brisendine does not support any limitation on searches conducted when an arrestee is booked for a felony arrest, viewing the case as invoking the
Brisendine did not address the scope of booking searches—as the opinion expressly stated. (Brisendine, supra, 13 Cal.3d at p. 547.) The only point we draw from Brisendine is that the substantive scope of
search the defendant‘s vеhicle, including the trunk, did not justify the warrantless search of a briefcase and tote bags in the trunk, the Ruggles court relied in
Respondent‘s assertion that the scope of a booking search in California is governed by Robinson, supra, 414 U.S. 218, also appears to be based on the assumption that Proposition 8, which was adopted in 1982, requires us to follow federal precedent. It is critical, however, to distinguish the substantive scope of constitutional protection against warrantless searches and seizures from the remedy for violations of that protection. Since the adoption of Proposition 8, evidence cannot be excluded as violative of state protections against unreasonable search and seizure unless it would also be inadmissible under the
Respondent‘s reliance upon People v. Diaz (2011) 51 Cal.4th 84, 90-95, is misplaced. Diaz, affirming the denial of a suppression motion, upheld a search of text messages on a cell phone found on defendant‘s person at time of arrest on the basis of Robinson and other United States Supreme Court precedent concerning the extent of a permissible search incident to arrest. (Diaz, at pp. 90-95.) Because it presented a question concerning suppression of evidence, the case was required to be decided solely under the
People v. Miranda (1987) 44 Cal.3d 57, the other case cited by respondent concerning booking searches, held that a letter in an envelope in the defendant‘s pocket “during an inventory booking search” at the police station was admissible at trial. (Id. at pp. 81-82.) Citing Laiwa, supra, 34 Cal.3d at page 726, and Illinois v. Lafayette, supra, 462 U.S. at page 646, Miranda explained that “the purposes of and justifications for [a search of the personal effects of an arrested person at the time of booking] are essentially two—to safeguard and account for the arrestee‘s belongings and to promote jail security.” (Miranda, at p. 81.) A search can be justified on this basis only if these purposes are met; neither a search before actual booking nor one conducted after the booking process has ended meet the test. (Laiwa, at p. 727; People v. Smith, supra, 103 Cal.App.3d at p. 845.) Respondent does not explain how the taking of a DNA sample at booking, before a judicial determination of probable cause, would be justified as an inventory search or promote jail security.
Contrary to respondent‘s assertion, the California Supreme Court has never held that in the area of search and seizure, the rights guaranteed by the state and federal Constitutions are necessarily “coextensive.” As respondent points out, the court has held that “the touchstone for all issues under the
People v. Crowson (1983) 33 Cal.3d 623, 629 (Crowson), overruled on other grounds in People v. Myers (1993) 5 Cal.4th 1193, 1195, is not to the contrary. In that case, the police had secretly recorded a conversation between the
Crowson engaged in no analysis of the substance of the state and federal search and seizure provisions as compared to each other; it simply compared those two provisions, on the one hand, with the state privacy provision, on the other. Its observation that the privacy provision does not afford greater protection in the search and seizure context than would the search and seizure provisions themselves says nothing about the respective reach of either search and seizure provision in a given situation. The same is true of the two cases respondent offers as having cited Crowson with approval, Sheehan v San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 and Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. Both Sheehan and Hill were civil cases in which the plaintiffs claimed violations of their constitutional right to privacy. Both noted the comparison of the two search and seizure provisions with the privacy provision; neither compared the federal and state search and seizure provisions with each other.
Indeed, it would be surprising to find California cases decided after Proposition 8 discussing differences in the substantive scope of the state and federal search and seizure provisions, as it is highly unusual for search and seizure issues to arise in any context other than a suppression motion, which Proposition 8 requires to be decided according to federal law. The unavailability of the exclusionary rule as a remedy for violations of the state Constitution that are not violations of the
D. Intrusiveness of the California DNA Act
The California DNA Act intrudes too quickly and too deeply into the privacy interests of arrestees.
As we will explain, the fact that DNA is collected and analyzed immediately after arrest means that some of the arrestees subjected to collection will never be charged, much less convicted, of any crime—and, therefore, that the governmental interest in DNA collection is inapplicable while the privacy interest is effectively that of an ordinary citizen. The absence of automatic expungement procedures increases the privacy intrusion because DNA profiles and samples are likely to remain available to the government for some period of time after the justification for their collection has disappeared, potentially indefinitely. And the fact that familial DNA searches are not prohibited means that the Act would permit intrusion into the privacy interests of arrestees biological relatives if the DOJ were to alter its current policy of not using arrestees’ DNA for such searches.
Because the constitutionality of collecting DNA from convicted offenders has been accepted, the governmental interest at stake in King was not in obtaining DNA at all but in obtaining DNA sooner than if it had to wait for conviction. The Vermont Supreme Court questioned the significance of this interest: As to the difference between obtaining DNA after arraignment and waiting for conviction, the court stated, “the State has not shown why quicker access to the DNA is a weighty interest, and we cannot find it to be so.” (Medina, supra, 2014 Vt. LEXIS 71 at p. *49.)23
Justice Scalia pointed out in his King dissent that the majority‘s decision had an “ironic result“: “The only arrestees to whom the outcome here will
In California, the burdened group includes not only those ultimately acquitted of criminal conduct but also those never even charged. The percentage of arrestees potentially affected in the latter way is not small: Statistics published by the DOJ indicate that in 2012 (the most recent year for which these numbers are available), 62 percent of felony arrestees who were not ultimately convicted—almost 20 percent of total felony arrestees—were never even charged with a crime.24 (
In the present case, respondent‘s only articulation of its interest in immediate DNA testing—as opposed to testing after a judicial determination of
Moreover, permitting DNA to be collected immediately after arrest effectively leaves the determination of who will be subjected to DNA testing entirely in the hands of arresting officers. In many situations, the conduct for which an individual is arrested might be viewed as fitting the definition of a number of different crimes; whether the offending behavior is charged as a misdemeanor or a felony is initially left to the judgment of the arresting officers, leaving room for variation between both jurisdictions and between individual officers. (See DNA Testing, supra, 127 Harv. L.Rev. at pp. 188-189.) As the Supreme Court has explained with respect to the federal Constitution, ” ‘The point of the
Further, aside from the undue discretion afforded to law enforcement officers to determine whether an arrestee will be subject to DNA testing, this aspect of the DNA Act opens an opportunity for actual abuse. Without questioning the integrity of most law enforcement officers, it is not difficult to think that the DNA Act might provide an incentive to pretextually arrest a person from whom the police desire a DNA sample, as the Act would permit officers to collect the DNA and then release the uncharged arrestee, thereby obviating the need for any judicial inquiry into probable cause. (See Laiwa, supra, 34 Cal.3d at pp. 727-729 [accelerated booking search would give police license to conduct booking search on arrest for minor offense in hope of discovering evidence of more serious crime]; Brisendine, supra, 13 Cal.3d at p. 534 [ostensible weapons search as façade to justify exploratory search for narcotics would be illegal].)27
The fact that the DNA Act does not provide for automatic expungement increases the weight of the arrestee‘s privacy interest. California places the burden on the arrestee to pursue an onerous judicial process which seemingly vests the prosecutor with power to prevent expungement merely by objecting to the request (
In addition, due to California‘s policy of familial searching, the California DNA Act intrudes upon the privacy of individuals who have not themselves come into any contact with law enforcement. This intrusion is worthy of
Aside from their targeting of individuals who have done nothing to bring themselves into contact with the criminal justice system,31 familial DNA searches have a discriminatory effect: These searches condition criminal suspicion on nothing more than the fact of being a close relative of a person whose profile is in the DNA database, and racial and ethnic minorities comprise a much greater portion of that database than their proportion in the population at large. (Kaye & Smith, DNA Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage (2003) 2003 Wisc. L.Rev. 413, 440-441 (DNA Databases); Relative Doubt, supra, 109 Mich. L.Rev. at p. 322; Duster, DNA Dragnets and Race: Larger Social Context, History, and Future (Nov.-Dec. 2008) 21 GeneWatch 3, 3-4.)32
E. Reasonable Expectation of Privacy
It follows from these principles that the express protection for the right to privacy enshrined in the
The Privacy Initiative protects both “interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy‘)” and “interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy‘).” (Hill, supra, 7 Cal.4th at p. 35.) But “[i]nformational privacy is the core value furthered by the Privacy Initiative. (White v. Davis [(1975)] 13 Cal.3d 757, 774.)” (Hill, at p. 35.) As the Hill court discussed, “[t]he principal focus of the Privacy Initiative is readily discernible. The Ballot Argument warns of unnecessary information gathering, use, and dissemination by public and private entities—images of ‘government snooping,’ computer stored and generated ‘dossiers’ and ’ “cradle-to-grave” profiles on every American’ dominate the framers’ appeal to the voters. ([Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 26 (hereafter Ballot Argument)] at p. 26.) The evil addressed is government and business conduct in ‘collecting and stockpiling unnecessary information . . . and misusing information gathered for one purpose in order to serve other purposes or to embarrass . . . .’ (Id. at p. 27.) ‘The [Privacy Initiative‘s] primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy.’ (White[, at p.] 774.)” (Hill, supra, 7 Cal.4th at p. 21.)
“A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms
As we have seen, DNA samples contain an enormous amount of personal information—the entire human genome. DNA testing is neither necessary nor practical for the only non-investigative purpose advanced to justify it—verifying the identity of arrestees. Moreover, DNA ostensibly gathered for the purpose of identification is misused to serve another purpose, criminal investigation. Considering also that the DNA Act permits the indefinite retention of this material—even that of arrestees who are never charged or never convicted of any offense—the collection and indefinite storage of DNA samples is the epitome of the kind of stockpiling of personal and private information the Privacy Initiative meant to protect from unnecessary governmental intrusion. While King paid little if any attention to the length of time a DNA sample could be retained and the extent of the uses to which it could be put, including risks of unauthorized leaks or research, as well as human error in the processing and analyzing of DNA (DNA Testing, supra, 127 Harv. L.Rev. at pp. 192, 195), such concerns cannot be ignored under
The DNA Act attempts to address privacy concerns in two ways: First, by providing for expungement of DNA profiles from the database and destruction of DNA samples when the basis for including them has been proven unwarranted; and, second, by insisting upon confidentiality of “[a]ll DNA and forensic identification profiles and other identification information retained by the [DOJ] pursuant to this chapter” except as provided under the Act (
These provisions, of course, do little to protect the privacy interests implicated by the investigatory use of DNA information, as described above. It is questionable how much protection they afford against other misuse of the information. As we have already described, the expungement procedures in the DNA Act put the burden of seeking expungement upon the arrestee, the process is onerous, and the DNA Act appears to allow the prosecutor—whose
As for the enforcement provisions, although the DNA Act criminalizes misuse of DNA information, it is difficult to imagine these provisions being enforced in any but the most exceptional cases. There is no civil remedy for misuse of DNA information (
In light of the concerns underlying the Privacy Initiative, the nature and extent of personal information contained in DNA samples, and the likely indefinite retention of such samples for many individuals who are never found to have committed a crime, the privacy interest at stake in this case is extremely weighty.
IV. Conclusion
The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to “shrink the realm of guaranteed privacy.” (Kyllo v. United States (2001) 533 U.S. 27, 34.) The information contained in a DNA profile—and even more so that in a DNA sample—is deeply personal; “[o]ne can think of few subject areas more personal and
On the continuum of privacy rights ranging from ordinary citizens, with full expectation of privacy, to incarcerated prisoners, with a very limited expectation of privacy (see Samson, supra, 547 U.S. at p. 850), the privacy rights of arrestees are greater than those of probationers, parolees or convicted prisoners. Within the category of arrestees, an individual such as appellant, who has not yet been the subject of a judicial determination of probable cause, falls closer to the ordinary citizen end of the continuum than one as to whom probable cause has been found by a judicial officer or grand jury. And a significant percentage of all felony arrestees—one-third to one-half in 2012—are not in fact convicted;34 whatever the basis of the initial arrest, many of these arrestees are legally innocent of any crime. Yet their DNA profiles remain in the state and federal databanks, and their DNA specimens and samples in the DOJ Laboratory indefinitely, unless and until they are able to successfully negotiate a lengthy and burdensome expungement process that is far from guaranteed to succeed.
The judgment is reversed.
Kline, P.J.
We concur:
Richman, J.
Brick, J.*
* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
| Trial Court: | Superior Court of City and County of San Francisco |
| Trial Judge: | Hon. Carol Yaggy |
| Attorneys for Appellant: | First District Appellate Project Jonathan Soglin, Executive Director J. Bradley O‘Connell, Asst. Director Kathryn Seligman, Staff Attorney |
| Attorneys for Amicus Curiae in support of Appellant: | American Civil Liberties Union Foundation Michael T. Risher Paul Hastings LLP Peter C. Meier Eric A. Long Jamie L. Williams University of California Hastings College of the Law Professor Joseph R. Grodin Electronic Frontier Foundation Hanni Fakhoury California Public Defenders Association California Attorneys for Criminal Justice & Los Angeles County Public Defender Linda F. Robertson Jennifer Friedman Federal Public Defender of the Eastern Dist. of CA National Assoc. of Criminal Defense Lawyers Daniel J. Broderick, Federal Defender David Porter, Asst. Federal Defender Rachelle D. Barbour |
| Attorneys for Respondent: | Edmund G. Brown Jr., Attorney General Kamala D. Harris, Attorney General Dane R. Gillette, Chief Asst. Atty. General Gerald A. Engler, Sr. Asst. Atty. General Joyce Blair, Supervising Deputy A.G. Stan Helfman, Supervising Deputy A.G. Jeffrey M. Laurence, Supervising Deputy A.G. Enid A. Camps, Deputy Attorney General |
| Attorneys for Amicus Curiae DNA Saves, in support of Respondent: | Fulbright & Jarowski Tillman James Breckenridge Jonathan S. Franklin |
| Attorneys for Amicus Curiae in support of Respondent | Los Angeles County District Attorney Steve Cooley, District Attorney Irene Wakabayashi, Deputy District Attorney Phyllis C. Asayama, Deputy District Attorney Roberta Schwartz, Deputy District Attorney California District Attorneys Association W. Scott Thorpe |
Notes
DNA databanks are growing rapidly. As of September 2014, NDIS contained over 11,164,117 offender profiles, 20,267,611 arrestee profiles and 583,444 forensic profiles. (CODIS-NDIS Statistics (Statistics) < http://www.fbi.gov/about us/lab/biometric-analysis/codis/ndis-statistics>.) The FBI states that “[t]hrough the combination of increased Federal funding and expanded database laws, the number of profiles in NDIS continues to increase dramatically.” (Brochure, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure.) As of September 2014, CODIS had produced over 261,703 “hits” (identifying a potential suspect or linking multiple crime scenes), assisting in more than 250,230 investigations nationwide. (Statistics, supra, <http://www.fbi.gov/about-us/lab/biometric analysis/codis/ndis-statistics>; Fact Sheet, supra, <http://www.fbi.gov/about us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet>.) As of September 30, 2014, the California DNA Data Bank Program (CAL-DNA) contained 2,327,610 DNA samples received and logged, and 2,327,610 subject profiles uploaded pursuant to
“(A) The written request for expungement pursuant to this section.
“(B) A certified copy of the court order reversing and dismissing the conviction or case, or a letter from the district attorney certifying that no accusatory pleading has been filed or the charges which served as the basis for collecting a DNA specimen and sample have been dismissed prior to adjudication by a trier of fact, the defendant has been found factually innocent, the defendant has been found not guilty, the defendant has been acquitted of the underlying offense, or the underlying conviction has been reversed and the case dismissed.
“(C) Proof of written notice to the prosecuting attorney and the Department of Justice that expungement has been requested.
“(D) A court order verifying that no retrial or appeal of the case is pending, that it has been at least 180 days since the defendant or minor has notified the prosecuting attorney and the Department of Justice of the expungement request, and that the court has not received an objection from the Department of Justice or the prosecuting attorney.”
An individual may initiate expedited expungement proceedings by filing a request form and “sufficient supporting documentation of his/her identity, legal status, and criminal history” with the DOJ DNA Database Program. (<http://ag.ca.gov/bfs/pdf/ expungement_app_instruc.pdf> [as of Dec. 1, 2014].) Depending on the grounds for expungement, the required documentation may be a letter in support of expungement from a district attorney or prosecutor, or a certified or file-stamped copy of a court order, opinion, docket, or minute order. (Streamlined DNA Expungement Application Form 244 <http://ag.ca.gov/bfs/pdf/expungement_app.pdf>) If DOJ denies the request, the individual may initiate a court proceeding pursuant to the
Haskell v. Harris, supra, 745 F.3d 1269 does not compel us to reach any particular resolution of the present case. First, Haskell did not adjudicate the constitutionality of the DNA Act; it only held that plaintiffs were not entitled to a preliminary injunction. Second, even with respect to a Fourth Amendment analysis, decisions of the Ninth Circuit are persuasive authority but not binding upon California state courts. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352 (Raven).)