Defendant Mark Buza was arrested for arson and related felonies and transported to jail. At booking, a jail official informed defendant that he was required to provide a DNA sample by swabbing the inside of his cheek. He refused. A jury later convicted him of both the arson-related felonies and the misdemeanor offense of refusing to provide a specimen required by the DNA Act. ( Pen. Code, § 298.1, subd. (a).)
The Court of Appeal reversed defendant's misdemeanor refusal conviction, holding that the DNA Act violated defendant's rights under the Fourth Amendment to the United States Constitution. While the case was pending on appeal, the United States Supreme Court addressed a similar issue in
Maryland v. King
(2013)
Defendant raises a number of questions about the constitutionality of the DNA Act as it applies to various classes of felony arrestees. But the question before us is a narrower one: Whether the statute's DNA collection requirement is valid as applied to an individual who, like defendant, was validly arrested on "probable cause to hold for a serious offense"-here, the felony arson charge for which defendant was ultimately convicted-and who was required to swab his cheek as "part of a routine booking procedure" at county jail. (
King
,
supra
,
I.
A.
For decades before the DNA Act, California law had required the collection of biological samples from individuals convicted of certain offenses. In 1983, the Legislature enacted legislation requiring certain sex offenders to provide blood and saliva samples before their release or discharge. (Stats. 1983, ch. 700, § 1, pp. 2680-2681, codified at Pen. Code, former § 290.2.) In 1998, the
When the California electorate voted to pass Proposition 69 on the 2004 general election ballot, it substantially expanded the scope of DNA sampling to include individuals who are arrested for any felony offense, as well as those who have been convicted of such an offense. In
People v. Robinson
(2010)
The DNA Act provides that, as of January 1, 2009, all adult felony arrestees "shall provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identification analysis." ( Pen. Code, § 296, subd. (a).) Providing a buccal swab sample requires the arrestee to apply a swab to the inside of his or her cheek to collect the "inner cheek cells of the mouth," which contain DNA. ( Id. , § 295, subd. (e).) The statute provides that these specimens, samples, and print impressions shall be collected "immediately following arrest, or during the booking ... process or as soon as administratively practicable ... but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody." ( Id. , § 296.1, subd. (a)(1)(A).) Refusal to provide any of the required specimens is punishable as a misdemeanor. ( Id. , § 298.1, subd. (a).)
Collected DNA samples are sent to California Department of Justice's DNA Laboratory for forensic analysis. ( Pen. Code, §§ 295, subds. (f), (g), (i)(1)(C), 295.1, subd. (c).) The laboratory uses the samples to create a unique DNA identification profile, using genetic loci that are known as "junk" or "noncoding" DNA, because the loci have no known association with any genetic trait, disease, or predisposition. (See
King
,
supra
, 569 U.S. at pp. 442-443, 445,
Information obtained from an arrestee's DNA is confidential and may not be disclosed to the public. ( Pen. Code, § 299.5.) DNA
The DNA Act provides that if an arrestee is cleared of charges and there is no other basis for keeping the information, the arrestee "shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from
The DNA Act includes a broad severability provision. The provision specifies that the invalidity of certain provisions or their application "shall not affect other provisions or applications that can be given effect without the invalid provision or application." (Prop. 69,
B.
On the afternoon of January 21, 2009, a San Francisco police officer saw defendant running away from a police car that had burning tires. Police found defendant hiding nearby and searched him. Matches were found in defendant's pocket, a container of oil was found in his backpack, and a road flare and a bottle containing a liquid that smelled like gasoline were discovered in the area where he had been hiding.
On January 22, 2009, a judge of the Superior Court found probable cause to believe that defendant committed a public offense for which he could be detained, namely, felony arson in violation of Penal Code section 451, subdivision (d). The next day, the district attorney filed a felony complaint charging defendant with that offense, as well as possession of combustible material or incendiary device ( id ., § 453, subd. (a) ), and vandalism ( id ., § 594, subd. (b)(1) ). The complaint also charged defendant with misdemeanor refusal to provide a DNA specimen ( id ., § 298.1, subd. (a) ). Defendant was arraigned on the same day and pleaded not guilty to the charges.
Approximately three months later, defendant was tried before a jury. Defendant moved for judgment of acquittal on the misdemeanor refusal charge, arguing that the Fourth Amendment did not permit the state to compel arrestees to furnish DNA samples. The court denied the motion. At trial, defendant admitted to setting the police car on fire; he testified that while he regarded setting the fires as a justified protest against government overreach, he knew his act was regarded as illegal. Defendant also admitted to refusing to provide a DNA sample in accordance with Penal Code section 298.1. The jury convicted defendant of all charges.
The trial court ordered defendant to provide a DNA sample before he was sentenced, and when defendant initially refused to comply
The Court of Appeal again reversed defendant's conviction. Although the court observed that California's DNA collection law is broader than the Maryland law at issue in King , the court declined to decide whether the differences between the California law and the Maryland law change the Fourth Amendment calculus under King . The Court of Appeal instead rested its decision on the prohibition on unreasonable searches and seizures in article I, section 13 of the California Constitution. In language closely paralleling its initial decision, the court held that "the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under article I, section 13, of the Constitution."
In the wake of King , other California Courts of Appeal have addressed the constitutionality of the DNA Act in the context of reviewing decisions regarding the suppression of evidence derived from DNA samples collected from felony arrestees. Those courts have concluded that, under King 's reasoning, the collection and testing of arrestee DNA samples under the DNA Act does not violate the Fourth Amendment.
We granted review to decide whether the collection and analysis of forensic identification DNA database samples from felony arrestees, as required by Proposition 69, violates either article I, section 13 of the California Constitution or the Fourth Amendment to the United States Constitution. 1
II.
The Fourth Amendment to the United States Constitution provides, in pertinent part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Article I, section 13 of the California Constitution provides, in essentially identical language: "The right of the people to be secure in their
As the constitutional language itself makes plain, the "touchstone for all
The United States Supreme Court's decision in King , which was issued while this appeal was pending, has significantly altered the terms of the debate. After King , defendant no longer argues, as he had argued in the courts below, that the Fourth Amendment categorically forbids the mandatory collection of DNA from persons who have been arrested but not yet convicted of felony offenses. Defendant argues instead that King should be either distinguished on its facts or rejected as a matter of state constitutional law. Because both arguments require us to consider the import of the United States Supreme Court's decision in King , we will begin there.
A.
King
came to the high court against the backdrop of increasingly widespread use of DNA technology in criminal justice systems nationwide. As the court observed, all 50 states and the federal government require the collection of DNA samples from individuals who are convicted of felony offenses. In recent years, a majority of states and the federal government have also authorized the collection of DNA from some or all persons arrested for felony offenses. (
King
,
supra
,
The specific question before the court concerned the application of a Maryland law that authorized law enforcement authorities to collect DNA
The high court explained that, as a general rule, a search is presumptively unreasonable if it is undertaken in the absence of a warrant or individualized suspicion of wrongdoing. (
Vernonia School Dist. 47J v. Acton
(1995)
Weighing the privacy-related concerns at stake against law enforcement needs, the court concluded that the search was reasonable. On the law enforcement side of the balance, the court identified five interrelated governmental interests in obtaining the DNA sample. First, the court explained, the state has an interest in knowing " 'who has been arrested and who is being tried.' " (
King
,
supra
,
Law enforcement agencies, the court explained, "routinely have used scientific advancements in their standard procedures for the identification of arrestees" (
King
,
supra
,
Compared to this set of governmental interests, the high court concluded that the privacy interests at stake were more limited. To begin with,
The high court further concluded that analysis of the DNA sample, once collected, does not result in a privacy intrusion that violates the federal Constitution. (
King
,
supra
,
For these reasons, the court held that "[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the
B.
At least at first glance, King would seem to resolve the Fourth Amendment question raised in this case. King holds that DNA identification of arrestees is reasonable on booking following an arrest supported by probable cause to believe the arrestee has committed a serious offense. Defendant in this case was asked to provide a cheek swab as part of a routine booking procedure following an arrest supported by probable cause to believe he had committed a serious offense-namely, felony arson.
Defendant urges us to take a second look, however. He notes that while California's legal framework for the collection, analysis, and retention of
Although these differences between the California and Maryland laws may be relevant in another case involving a differently situated arrestee, this case involves a defendant who was validly arrested on probable cause to believe he had committed felony arson, and who was promptly charged with (and ultimately convicted of) that offense. In the context of the particular case before us, we conclude that none of the differences to which defendant points meaningfully alters the constitutional balance struck in King .
We begin with defendant's first argument, about the scope of the DNA Act's collection requirement. Defendant observes that the Maryland law at issue in King authorized DNA collection only from those accused of specified serious crimes, including a category defined as "crime[s] of violence" under state law, whereas the DNA Act authorizes DNA
Defendant appears to read too much into the language on which he relies. The high court identified the question before it more generally as "whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges." (
King
,
supra
,
But in any event, even if the federal Constitution permitted states to mandate collection of DNA samples only from persons arrested for felonies classified as particularly serious or violent, defendant in this case was arrested for felony arson in violation of Penal Code section 451, subdivision (d), a crime that is classified as a "serious felony" under California law. (See Pen. Code, § 1192.7, subd. (c)(14).) Defendant does not dispute the characterization.
Defendant's argument would thus seem to amount to a request that we reverse his conviction based not on any defect in the DNA Act's application to his case, but based on the Act's potential application to other, differently situated individuals. This is more than he may reasonably ask. The ordinary rule is "that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself." (
In re Cregler
(1961)
Defendant next points out that the Maryland law upheld in
King
permitted collection of a DNA sample only of arrestees "charged" with qualifying crimes (Md. Code Ann., Pub. Saf., § 2-504(b)(1) ), and prohibited officials from testing the sample or loading the profile into the statewide database until after the arrestee was arraigned and a judicial officer
There are two elements to this argument: one concerning the timing of the collection, the other concerning the timing
As to the second point, defendant argues that it is unreasonable for officials to proceed to test the DNA sample once collected, and to upload an arrestee's profile to the state DNA databank, before a judicial officer has found probable cause to support the arrest or before charges have been filed. Defendant
Defendant, who has never contested that his arrest was based on probable cause,
4
made no similar argument in the trial court; he argued that it was impermissible to require him to submit a DNA sample at all, not that it was unreasonable to do so without a guarantee that the analysis of the sample would be delayed until probable cause was confirmed by a neutral magistrate
Defendant contends that the timing of analysis nevertheless ought to figure in the equation because, as a practical matter, officers ordinarily will not receive a suspect's DNA profile until well after booking in any event. When officers make a warrantless arrest and take a suspect into custody, due process ordinarily requires that a judicial officer make a probable cause determination promptly after booking-ordinarily within 48 hours-to justify continued pretrial detention. (
County of Riverside v. McLaughlin
(1991)
Defendant's point about average processing times is not one that escaped the high court's notice in
King
; as noted, the court itself cited the same numbers. The court nevertheless concluded that DNA identification is a reasonable booking procedure, without suggesting that its reasonableness might vary depending on average processing times. The reasons for this are not difficult to discern. For one thing, individual DNA samples may be processed more quickly than average: The court noted the states' submission that some DNA identification samples in California have been processed significantly more quickly than others. (
King
,
supra
,
Defendant argues, not unreasonably, that we should decide this case in light of the conditions that prevailed at the time he refused to provide the sample, not in light of technological advances that might make it possible to process DNA samples more quickly in the future. But considering the matter from this vantage point does not help defendant's case. If we assume that defendant's sample would not have been processed significantly faster than the average of 30 days, as defendant would have us do, then we would also be bound to conclude that defendant would have, de facto, received the very delay he seeks: The record indicates that a
Justice Liu suggests that for purposes of deciding reasonableness of an arrestee's search, an arrest should not be considered valid until there has been a judicial determination of its validity. (Dis. opn. of Liu, J.,
post
, 230 Cal.Rptr.3d at pp. 706-710, 413 P.3d at pp. 1153-1156.) There is, however, a meaningful difference between the requirement of a valid arrest and a requirement that a neutral magistrate make such a determination. For example, in the related context of searches incident to arrest-where a valid arrest is also essential-there is no such preapproval requirement. (See
United States v. Robinson
(1973)
This brings us to defendant's final point, concerning the adequacy of the DNA Act's expungement procedures. As defendant notes, under the Maryland law at issue in
King
, an arrestee who is later exonerated is entitled to automatic destruction of his or her DNA sample and associated records. (
King
,
supra
, 569 U.S. at pp. 443-444,
King
does not speak directly to the issue defendant raises concerning the adequacy of the DNA Act's expungement procedures. Although the high court mentioned Maryland's automatic destruction provisions in passing, it attached no significance to them in its constitutional analysis. (
King
,
supra
, 569 U.S. at pp. 443-444,
The court's failure to mention the expungement provisions does not necessarily mean that they are irrelevant to the constitutional analysis, however. To be sure, the retention of an arrestee's fingerprints, photographs, and other identifying information in law enforcement files generally has not been thought to raise constitutional concerns, even though the arrestee may later be exonerated. (
Loder v. Municipal Court
(1976)
Again, the ordinary rule is "that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself." (
Cregler
,
supra
,
Restraint is particularly warranted here because much of defendant's argument depends on assertions about the workings of the expungement procedures that are as yet untested and unproved. The record before us reveals nothing, for example, about how the expungement provisions operate in a case in which a judge finds no probable cause to support the arrest. The statute does make clear that a person who is found to have been wrongly arrested is entitled to expungement:
Much the same is true about defendant's concern that the state may indefinitely retain DNA information of a person who, though arrested, has been found innocent of any crime. Defendant contends that a prosecutor may unilaterally block expungement by objecting for any reason, and a trial court likewise may deny expungement in its unconstrained discretion. It is not clear that he is correct on either score. It is true that the DNA Act describes a process that permits prosecutors to file objections to expungement (
Nor does a trial court order appear to be a necessary prerequisite to expungement. As the Attorney General points out, the California Department of Justice has created a "streamlined" process whereby eligible individuals may seek expungement directly from the Department, using a publicly available two-page form.
6
Defendant does not question the Department's authority to create this alternative, "streamlined" expungement process. (See
Because defendant never sought expungement-and indeed, has never claimed to be entitled to seek expungement, since he was both charged with and ultimately convicted of a qualifying crime-we have no occasion here to resolve any questions that might arise about the implementation of the expungement provisions in other cases. It suffices to note that many of defendant's assertions about the operation of the expungement process are, at this point, necessarily
Defendant argues, and the Court of Appeal concluded on remand from King , that even if requiring him to furnish a DNA sample as part of the booking process did not violate the Fourth Amendment, it violated the parallel prohibition on unreasonable searches and seizures in article I, section 13 of the California Constitution.
We evaluate the constitutionality of searches and seizures under our state Constitution by employing the same mode of analysis that the high court applied in
King
,
supra
,
In addressing defendant's argument, we reaffirm several long-established principles. First, the California Constitution is, and has always been, "a document of independent force" (
American Academy of Pediatrics v. Lungren
(1997)
Second, although decisions of the United States Supreme Court interpreting parallel federal text are not binding, we have said they are "entitled to respectful consideration." (
People v. Teresinski
(1982)
We have had several occasions to address the application of these principles in the context of search and seizure law in particular. Today, following a 1982 state constitutional amendment passed by voter initiative, the United States Supreme Court's interpretation of the Fourth Amendment is often not only persuasive, but controlling in criminal cases: Under Proposition 8, the "Right to Truth-in-Evidence" ( Cal. Const., art. I, § 28, subd. (f)(2) ), added by voters in 1982, the exclusionary rule does not apply to a search or seizure that violates article I, section 13, but does not violate the Fourth Amendment, and the fruits of such a search or seizure are admissible in a criminal trial. This means that in California criminal proceedings, issues related to the suppression of evidence seized by police are, in effect, governed by federal constitutional standards. (
E.g.
,
People v. Lenart
(2004)
Here, in contrast to many of our earlier cases, the United States Supreme Court has resolved the question before us under the Fourth Amendment. The question is thus not whether we should abandon our own contrary precedent, and any reliance interests that may have grown up around it, but whether we should reject the high court's Fourth Amendment guidance.
9
Confronted with a similar situation in
Teresinski
, in which this court's Fourth Amendment
Defendant argues there are several such reasons. To begin with, he argues that
King
should be rejected because its central premise is faulty.
King
concluded that DNA collection from persons arrested for serious offenses serves a legitimate governmental interest in safely and accurately processing and identifying the persons they take into custody. Defendant argues, however, that arrestee DNA information is not used to determine an arrestee's identity, but "solely for investigation of possible other crimes." Echoing the dissenting opinion in
King
(
supra
, 569 U.S. at pp. 467-469,
In evaluating defendant's argument, we do not write on a blank slate. As noted, in
Robinson
,
supra
,
Robinson
, like
King
, recognized that suspects can change their names, assume a false identity using forged documents, change their hair color, have tattoos removed, have plastic surgery, and change their eye color with contact lenses. But it is impossible to alter a DNA profile. Thus, as
Robinson
explained, " 'for purposes of identifying "a particular person" as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal
California law, like federal law, has also recognized that identification of arrestees is not an end in itself; rather, the primary purpose of identification is to facilitate the gathering of information about the arrestee contained in police records, which in turn informs decisions about how to proceed with the arrestee. (
Loder v. Municipal Court
,
supra
, 17 Cal.3d at pp. 866-867,
As counsel confirmed at oral argument, defendant does not dispute that it is reasonable for officers to check an arrestee's fingerprints against "electronic databases of known criminals and unsolved crimes." (
King
,
supra
,
As the high court explained in
King
, "[t]he question of how long it takes to process identifying information obtained from a valid search goes only to the
To the extent defendant means to argue that fingerprinting simply makes DNA identification superfluous, we have no adequate basis for concluding that is so. Fingerprinting and DNA identification are not simply substitutes for one another. (
Robinson
,
supra
,
Defendant also argues that we should reject
King
as a matter of state constitutional law because
King
"ignored the highly sensitive nature of the genetic data contained in the collected DNA," and "did not address what federal circuit courts have recognized as the more significant privacy implications posed by the state's subsequent analysis and retention of the sensitive information contained in DNA." The criticism is misplaced. Contrary to defendant's characterization, the court in
King
recognized that the privacy interests at stake extended beyond the "minimally invasive" physical collection of the DNA sample by buccal swab. (
King
,
supra
,
We, too, are mindful of the heightened privacy interests in the sensitive information that can be extracted from a person's DNA. These interests implicate not only article I, section 13, but
Defendant next argues that this court should reject
King
because article I, section 13, gives arrested suspects greater privacy rights than they possess under the Fourth Amendment. Defendant points to decisions of
But what motivated these decisions was not principally a difference in opinion with the federal courts about the scope of legitimate privacy rights of persons subject to custodial arrest. California law and federal law alike recognize that an arrestee has reduced privacy interests upon being taken into police custody, but that reduced privacy interests do not mean zero privacy interests-which is to say, "[n]ot every search 'is acceptable solely because a person is in custody.' " (
Riley v. California
,
supra
,
The question before us, by contrast, does not concern the constitutionality of a booking search conducted immediately upon arrest, but a booking search conducted at the time of booking , and justified by an interest in accurate identification that applies to all persons who are taken into police custody following a valid arrest for a serious offense. Cases concluding that full booking searches are inappropriate for arrestees who will never be booked into jail are thus of limited relevance here.
Finally, defendant argues that even if the differences between the DNA Act and the law at issue in King do not alter the Fourth Amendment analysis, they should alter the state constitutional analysis. For reasons already given, these differences do not change our assessment of the constitutionality of the DNA Act as applied in defendant's case. Officials asked defendant for a DNA sample upon booking, after he was arrested on probable cause for a serious offense, and as he was entering pretrial detention. Under the circumstances before us, the requirement was not unreasonable.
IV.
Our holding today is limited. The sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson. Because we conclude the requirement was reasonable as applied to defendant, we hold he is subject to the statutory penalties prescribed in Penal Code section 298.1.
In assessing whether the demand for a sample of an arrestee's DNA was reasonable under article I, section 13, we agree that it may be appropriate to consider not only the minimal nature of the physical intrusion associated with a buccal swab, but the arrestee's reasonable expectations about what would happen to the sample after collection. But in so analyzing the arrestee's choice, we cannot ignore the safeguards built into the DNA Act: the limited nature of the information stored in databases on an arrestee (specifically, a numerical profile describing noncoding parts of the arrestee's DNA); the legal protections against possible misuse of the profile or the sample (including felony sanctions for knowing improper use or dissemination); and the availability of procedures for removing the profile from the database and destroying the sample should the basis for the arrestee's inclusion dissipate. We have no record before us to show that these legal protections would have been violated or proved unworkable had defendant chosen to comply with the requirement to provide a DNA sample on booking. And we note, as a purely practical matter, whatever apprehension defendant might have had about the adequacy of the Act's protections for individuals who are found to have been wrongly arrested, for example, would certainly have been mitigated by his own knowledge of the circumstances of his arrest. (Here, the record shows that defendant knew from the outset that he had been apprehended in the act of setting fire to the tires of a police car and anticipated that he would be prosecuted for his acts, to which he would later confess at trial. (See fn. 4, ante .) ) To be sure, as explained above, defendant was entitled to the full scope of constitutional protection against unreasonable searches, despite his arrest on evident probable cause. And had he later found himself in a position to seek expungement of his sample and profile and found the statutory procedures inadequate, he would have been entitled to challenge the retention of his information on that basis.
Not all arrestees will be comparably situated to the defendant in this case. An individual who, unlike defendant, is arrested in the absence of probable cause might reasonably anticipate that charges will never be brought and any attempted prosecution will inevitably fail.
10
And such an
To entertain defendant's arguments here would convert our decision in this case, which concerns only the validity of defendant's conviction for violation of Penal Code section 298.1, into the equivalent of facial constitutional review of the DNA Act as it might be applied to other arrestees. But the DNA Act itself instructs that the validity of the Act as applied to defendant does not depend on its validity as it might apply to others. (Prop. 69,
supra
, § V, subd. (b); see p. 6,
ante
.) And our jurisprudence likewise counsels us to follow a narrower course. While "passing on the validity of a law wholesale may be efficient in the abstract," the law teaches that we should ordinarily focus on the circumstances before us in determining whether the work of a coequal branch of government may stand or must fall. (
Sabri
,
supra
,
In sum: Defendant raises a number of concerns about the potential application of the DNA Act in other cases involving other, differently situated arrestees. He also raises concerns that changes in technology might open up new prospects for using his DNA samples and profiles in ways that are uniquely invasive of personal privacy. We are mindful of these concerns, and
In addressing the concerns defendant has raised here, however, we are also mindful of our role in reviewing a law duly enacted by California voters in the exercise of their initiative power. We have often said that "it is our solemn duty to jealously guard" the initiative power secured by the California Constitution, and that we accordingly may not strike down voter measures "unless their unconstitutionality clearly, positively, and unmistakably appears." (
Legislature v. Eu
(1991)
The judgment of the Court of Appeal is reversed.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
CHIN, J.
CORRIGAN, J.
DISSENTING OPINION BY LIU, J.
According to today's opinion, "[t]he sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure
following a valid arrest for felony arson
." (Maj. opn.,
ante
,
The DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act) requires collection of DNA from all adult felony arrestees "immediately following arrest" and requires samples to be "forwarded immediately" to the laboratory for analysis.
According to the Office of the Attorney General, there are 200,000 to 300,000 felony arrests in California every year. (Cal. Dept. of Justice, Crime in California 2016 (Aug. 17, 2017) p. 49.) But not all arrests end in convictions; far from it. Here are the Attorney General's data on dispositions of adult felony arrests for each year since 2009, when the DNA Act started requiring all such arrestees to provide DNA samples immediately upon arrest:
( Id. at table 37, p. 49.) These data show that from 2009 to 2016, nearly one in five felony arrests did not result in prosecution, and almost one in three-a total of 724,492 arrests-did not result in a conviction.
Each of those arrests triggered the requirement to provide a DNA sample. Yet the state has no legal basis for retaining the DNA sample or profile if no charges are filed, if the charges are dismissed, if the person is acquitted or found not guilty or factually innocent, or if the conviction is reversed and the case is dismissed, unless there is some other basis such as a prior
The statute sets forth a process for expungement, but this process is not adequate to allay constitutional concerns. In contrast to the automatic expungement provisions of the state law at issue in
The extensive documentation, notice to multiple parties, judicial hearing, and additional steps required for expungement place a significant burden on eligible persons, assuming they are even aware of the process. In addition, although the statute says a person whose arrest resulted in no charge or conviction "shall have his or her DNA specimen and sample destroyed and searchable database profile expunged" if the state has "no legal basis for retaining" them ( Pen. Code, § 299, subd. (a) ), the statute also says: "The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by
The Department of Justice has sought to expedite the process by creating a "Streamlined DNA Expungement Application Form." (Cal. Dept. of Justice, Proposition 69 (DNA) < https://oag.ca.gov/bfs/prop69> [as of Apr. 2, 2018] ["Remove Your DNA Sample from the DNA Database"]; cf.
The Department of Justice DNA Laboratory publishes monthly reports on the
The state's retention of DNA is troubling not only because of its sheer magnitude but also because it predictably burdens certain groups. African Americans, who are 6.5 percent of California's population, made up 20.3 percent of adult felony arrestees in 2016. (U.S. Census Bureau, QuickFacts: California (July 1, 2016) < https://www.census.gov/quickfacts/CA> [as of Apr. 2, 2018]; Crime in California 2016,
supra
, at p. 36.) Yet they comprised 24.3 percent of felony arrestees who were released by law enforcement or the prosecuting attorney in 2016 before any court disposition. (Disposition of Criminal Cases,
supra
, at p. 10.) Non-Hispanic whites, by contrast, comprised 31.2 percent of felony arrestees but only 27.0 percent of felony arrestees released by law enforcement or the prosecuting attorney. (Crime in California 2016,
Penal Code section 297, subdivision (c)(2) provides an alternative route for expungement: "The law enforcement investigating agency submitting a specimen, sample, or print impression to the DNA Laboratory of the Department of Justice or law enforcement
The court says it need not consider the adequacy of the expungement process because Buza was "charged with and ultimately convicted of a qualifying crime." (Maj. opn.,
ante
,
In addition, the court says collecting DNA from an arrestee before a judge has determined the validity of the arrest is analogous to a search incident to arrest, "where a valid arrest is also essential [and] there is no such preapproval requirement." (Maj. opn.,
ante
,
The court further contends that "whatever apprehension defendant might have had about the adequacy of the Act's protections for individuals who are found to have been wrongly arrested, for example, would certainly have been mitigated by his own knowledge of the circumstances of his arrest. (Here, the record shows that defendant knew from the outset that he had been apprehended in the act of setting fire to the tires of a police car and anticipated that he would be prosecuted for his acts, to which he would later confess at trial. (See fn. 4,
ante
.) ) .... [¶] Not all arrestees will
I have no doubt that law enforcement is aided by the collection and retention of massive numbers of DNA profiles, whether those profiles are used to confirm a person's identity, to facilitate access to criminal history or other information about a person, or to help solve unsolved crimes. But if those interests are enough to justify the collection and retention of DNA from persons who are arrested but not convicted, not charged, or not even found to be lawfully detained so long as they do not seek expungement, then it is not that far a step for the state to collect and retain DNA from law-abiding people in general, including anyone who "applies for a driver's license" or "attends a public school." (
King
,
supra
,
Indeed, the court's analogy to fingerprinting, a less invasive and less powerful technology, should give us pause. (Maj. opn.,
ante
, 230 Cal.Rptr.3d at pp. 703-705, 413 P.3d at pp. 1150-1152 ; see dis. opn. of Cuéllar, J.,
post
, 230 Cal.Rptr.3d at pp. 728-730, 413 P.3d at pp. 1171-1173.) State law already requires individuals to provide a fingerprint in order to get a driver's license ( Veh. Code, § 12800, subd. (c) ), to become a school teacher ( Ed. Code, § 44340 ), to be a professional engineer ( Cal. Code Regs., tit. 16, § 420.1 ), to be a practicing attorney ( Bus. & Prof. Code, § 6054, subd. (b) ), or to join many other occupations (
id.
, § 144 [requiring "a full set of fingerprints for purposes of conducting criminal history record checks" from applicants to 29 state licensing boards, including nurses, pharmacists, physicians, court reporters, funeral directors, guide dog instructors, contractors, and accountants] ). These requirements serve important public safety and law enforcement purposes. But if DNA matching is constitutionally justified by its unparalleled efficacy in serving the " 'same' " identification " 'function' " as fingerprinting (maj. opn.,
I conclude with a few words about the court's approach to state constitutional analysis against the backdrop of
King
. Today's opinion affirms that "the California Constitution is, and has always been, 'a document of independent force' [citation] that sets forth rights that are in no way 'dependent on those guaranteed by the United States Constitution' ( Cal. Const., art. I, § 24 )." (Maj. opn.,
ante
,
"Just as the Supreme Court, when interpreting a provision of the Federal Constitution, does not accord a presumption of correctness to any state's
As Justice Cuéllar notes, today's opinion provides no convincing rationale for why our analytical approach to a state constitutional issue should depend on "the order in which this court decides an issue vis-à -vis the high court." (Dis. opn. of Cuéllar, J.,
post
,
Moreover, the court fundamentally missteps in attributing its deferential reading of
King
to " 'the fact that to [the high court] has been committed, by the consent of the states, the ultimate vindication of liberty and property against arbitrary and unconstitutional state legislation.' " (Maj. opn.,
ante
,
Notwithstanding today's opinion, this court is no stranger to the importance of judicial federalism. In
People v. Cahan
(1955)
Instead of looking to these examples, today's opinion cites
Gabrielli v. Knickerbocker
(1938)
In sum, we should not indulge any suggestion that the job of protecting individual rights in our federal system belongs primarily to the United States Supreme Court or that the high court is invariably better positioned than state supreme courts to discharge that critical function. Because I do not agree with the court's analysis of the state constitutional question presented or its judgment upholding Buza's conviction for refusing to provide a DNA sample just hours after his arrest, I respectfully dissent. Having concluded that Buza's conviction for refusing to comply with the DNA Act is invalid under the California Constitution, I express no view on whether it is also invalid under the Fourth Amendment.
WE CONCUR:
CUÉLLAR, J.
PERLUSS, J. *
DISSENTING OPINION BY CUÉLLAR, J.
For all these individuals, the majority provides no protection-except to say that if they are exonerated, they may file written requests for the expungement of their DNA records. In so holding, the majority sidesteps the problems associated with the collection and expungement procedures of Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act or the Act). It contends that the scope of the legitimate privacy rights of persons arrested is no different under our constitution than under the Fourth Amendment to the federal Constitution and, by implication, that our own constitution plays no role in determining whether the rights of a California citizen subjected to a search of his person and collection of his DNA have been violated. I cannot agree.
Our state Constitution provides heightened protections for the privacy rights of individuals, including arrestees. Those protections do not vanish merely because someone is arrested. An arrest itself requires probable cause-
I.
What the parties in this case have asked us to decide is whether the DNA Act's provisions requiring collection from all adult felony arrestees violate article I, section 13 of the California Constitution. So we begin by considering our state Constitution, its relationship to the federal charter, and where the two diverge.
Construing a different statute and a different constitution, the high court in
King
decided that the Fourth Amendment permits-in some instances-collections of DNA from adults arrested for serious crimes. (
King
,
supra
,
We have done so in a variety of cases, where we concluded that California's Constitution extends protections to our citizens well beyond those the high court has announced in the federal context. (
Raven v. Deukmejian
(1990)
What's more, within the specific context of search and seizure of arrestees, we have been quite explicit in holding that article I, section 13 provides greater protection than does the Fourth Amendment. (
Brisendine
,
supra
, 13 Cal.3d at pp. 545-546,
The majority wisely avoids debating such principles. Instead, it seeks to limit relevance of cases like
Brisendine
,
Longwill
,
Norman
, and
Laiwa
by asserting that they all concern "the constitutionality of a [field] search conducted immediately upon arrest," and not, as was the case with petitioner Mark Buza, a search "conducted at
the time of booking
." (See maj. opn.,
ante
,
The majority suggests that we should not do so because the United States Supreme Court decided
King
before we considered the issue. It implies that if the Supreme Court "had not yet decided the parallel question under the Fourth Amendment," then we may be empowered to reach our own conclusions. (Maj. opn.,
ante
,
Nowhere in the majority opinion is there a persuasive justification for why the question is framed in terms of whether we should "reject" the United States Supreme Court's "guidance." Of course we consider United States Supreme Court decisions when they address the scope of a federal constitutional right analogous to a state right, even if we are not required on federal supremacy grounds to adopt the same approach. But unlike the majority, we treat our own precedent as worthy of-at least-"meaningful and careful consideration" as well. (Maj. opn.,
ante
,
The position the majority takes is in tension even with its own logic. There is simply no good reason to believe that the order in which this court decides an issue vis-à -vis the high court should determine the outcome of our deliberation, or that we should read our prior cases as supporting some kind of ersatz presumption that we should ration as much as possible the discussion of state constitutional rights. The framing is inconsistent with the
Second, how the majority decides to frame its inquiry is just as much a problem. By asking whether we may grant our own courts a permission slip to "depart" from a United States Supreme Court decision addressing a matter that is no more than partially similar to the case before us, the majority has done more than to adjust the weight on the state side of the jurisprudential scale relative to the federal side. It's dispensing with the scale altogether. Instead of weighing the relative merits of the issue at hand according to our independent responsibility to construe our Constitution, the majority appears to deploy words like "depart" and "guidance" to embrace the view that we should presumptively comply with a United States Supreme Court opinion that does not even address the precise question before us. In this new analysis, our own authorities are emaciated in importance by being read narrowly, such that booking searches are presumed to be so categorically distinct from field searches that nothing meaningful can be gleaned for this case from decisions involving the latter. Meanwhile, a far-broader reading and presumption of validity is reserved for a non-binding United States Supreme Court decision-even though the decision is interpreting a different Constitution, and a different DNA collection scheme that does not come close to applying to all felony arrestees. This
Those decisions underscore how adopting
King
's approach would be at odds with article I, section 1 of California's Constitution. And it would be at odds with our case law construing that provision and emphasizing the importance of informational and dignitary privacy interests under California law. In contrast to its federal counterpart, the California Constitution contains an express statement about the importance of personal privacy: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." ( Cal. Const., art. I § 1.) True: we have previously found that article I, section 1 does not by itself confer a privacy right substantively different from what article I, section 13 purports to protect. (
People v. Crowson
(1983)
The reason we have not so held is because the most sensible reading of the California Constitution would assign both importance and meaning to its mention of personal privacy. Even if the language in article I does not create a separate class of privacy rights, at a minimum this reference underscores how certain infringements of personal privacy deserve heightened scrutiny in our search and seizure analysis relative to what the federal analysis requires. Our cases construing article I, section 1 in relation to the federal Constitution reinforce this conclusion. What we have emphasized is that the scope of the state constitutional right of privacy is broader
Our cases have described the "core value" of article I, section 1 as protecting so-called "informational privacy," meaning the privacy interest in sensitive and confidential personal information. (
Hill v. National CollegiateAthletic Assn.
(1994)
Given the nature of these concerns, the machinery of the DNA Act appears to epitomize the sort of intrusion relevant under article I, section 1. The collection of DNA-whether it is via cheek swab or any of the other collection processes the Act permits (see Pen. Code, § 298.1, subd. (b) [permitting the use of reasonable force to collect DNA database samples] )-violates the subject's bodily integrity. (See
Hill
,
supra
, 7 Cal.4th at pp. 40-41,
The path we are bound to follow is a different one. Instead of relying primarily on
King
to yield a tidy solution in this case, we owe it to the citizens of our
II.
Once we assign proper weight and meaning to the California Constitution, we can turn to the ultimate question in any case arising under article I, section 13 : whether the search or seizure in question is reasonable. (
Ingersoll v. Palmer
(1987)
As a threshold matter, it is questionable whether the DNA Act genuinely furthers many of the interests the government identifies. The government must create a DNA profile and compare it against existing profiles to obtain any of the "identification" information it needs. The State informs us here that it takes "around 30 days on average" to generate an identification profile from an arrestee's DNA sample. Yet in seeking to justify the collection of DNA, the government points to functions-verifying identity, making bail decisions, and so forth-that it must perform near to the time an arrestee is booked and
The majority acknowledges that there may be a delay of "weeks or months" between the initial booking and when a DNA profile is generated. (Maj. opn.,
ante
, 230 Cal.Rptr.3d at pp. 703-705, 413 P.3d at pp. 1151-1152.) Nonetheless, it asserts that governmental interest in identifying arrestees is unaffected because information from an DNA profile-
Instead of the supposed interests tied to the initial arrest and booking, the most plausible justification for the present DNA collection is that it aids in identifying arrestees who may have been perpetrators of unsolved crimes. Proposition 69 was titled the "DNA Fingerprint, Unsolved Crime and Innocence Protection Act." Ballot arguments in favor of the initiative relied heavily on the promise that DNA collection would increase the likelihood of solving cold cases and help police investigations. (See Ballot Pamp., Gen. Elec. (Nov. 2, 2004) argument in favor of Prop. 69.) For instance, those arguments referenced a number of murders that had been solved based in part on DNA evidence and promised that the DNA Act would help "solve crime, free those wrongfully accused, and stop serial killers." (Ballot Pamp., Gen. Elec. (Nov. 2, 2004) text of Prop. 69, p. 62.) Likewise, the findings section of the proposed law declared that it would "solve crime[s]," "apprehend perpetrators," expand the number of "cold hits and criminal investigation links," and thereby "substantially reduce the number of unsolved crimes." ( Id. at p. 135.)
The Attorney General's arguments in defense of the DNA Act suffer essentially the same malady. Most of the government's justifications for the DNA Act that the Attorney General emphasizes-even those couched in terms of "identity"-pivot on generalized concerns about crime-solving. For instance, the Attorney General argues that since the DNA Act was enacted, the State has recorded more than 31,000 "hits" between identification profiles taken from arrestees and DNA stored from unsolved cases. The government argues that DNA identification yields "substantial benefits" for law enforcement, and illustrates the point by referencing cold cases that were solved after many years when DNA evidence was collected and linked to the unsolved matter. The government also argues that the "benefits" from the DNA Act include deterrence, insofar as a potential criminal is aware that the Act enhances law enforcement's capacity to identify the perpetrators of crimes and prosecute them.
The risk in simply embracing generalized crime-solving as sufficient justification for compelled collection of a DNA sample from someone who has merely been arrested is that such a move may be understood to justify searches and seizures of people and places without any particularized suspicion. The detection of legal wrongdoing is perhaps the preeminent justification for all policing activity, making such a generalized interest virtually always loom in the background when any law enforcement search is attempted. To allow such an interest to tip the balance and allow for, first, an intrusion into the body; second, analysis of the information seized therefrom; and, finally, potentially indefinite retention of the results (regardless of the outcome of the initial arrest that served as justification for the search), is to permit such an interest to become not only omnipresent but also omnipotent. Having trumped a person's interest in what is often the most jealously guarded fount of information-and having done so on the basis of nothing more than that the mere fact a person was subject to a felony arrest-the diffuse governmental interest in generalized crime-solving will almost always overwhelm any offsetting consideration. Which is why we must be especially vigilant before embracing the government's argument. (See
King
,
supra
,
So it is beyond question that the government may deploy reasonable techniques to solve crime-so long as those techniques do not effect a search or a seizure without individualized suspicion. Yet the fact that the class of persons subject to the DNA Act is limited to arrestees, rather than all citizens, does not give rise to the necessary threshold of suspicion to conduct a generalized search for incriminating information, nor does it change the usual presumption that searches are unlawful absent a warrant. Moreover, the warrant exception for a search incident to arrest is limited. It allows only for searches to uncover evidence of the crime that gave rise to the arrest itself or weapons that might be used to injure an arresting officer or accomplish an escape. (
Brisendine
,
supra
,
Under this authority, even full custodial arrest, booking, and incarceration will not authorize law enforcement to conduct an exploratory search of an arrestee in the hope of discovering evidence of another, possibly more serious crime. (See
Laiwa
,
supra
, 34 Cal.3d at pp. 727-728,
Rather than finding these police processes to constitute reasonable invasions of an arrestee's privacy, our precedent instead concludes that the taking of fingerprints or photographs does not implicate
A recent United States Supreme Court decision also cuts against treating fingerprinting and DNA collection as equivalent. In
Birchfield
,
supra
,
Breath tests are like fingerprints, and DNA samples, like blood. Fingerprints reveal only limited bytes of information. Not so with DNA. DNA samples contain a wealth of genetic information, which would make an individual nervous about possible violations of his or her privacy as long as the information remains in the state's possession. The Supreme Court had no trouble distinguishing between breath and blood tests, finding one constitutional and the other not. We likewise would do well not to ignore the distinction between DNA analysis and fingerprinting.
Nor should we ignore that fingerprinting remains available to advance many of the very interests that allegedly support the DNA Act. The existence of fingerprints as a fast and accurate means to ascertain the identity of an arrestee further diminishes the state's interest in identifying
III.
Even as the DNA Act falls short of legitimately advancing the interests the government asserts, its requirements constitute a major intrusion into the privacy of all the people subject to its procedures. Focusing solely on the
The second intrusion-the processing, storage, and comparison of an individual's DNA sample-is a far more significant invasion of an arrestee's privacy. That one's DNA reveals much of a person's most private, closely guarded information is difficult to dispute. A DNA sample stored by the state contains an arrestee's entire genetic code-information that has the capacity to reveal the individual's race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, predisposition to certain traits, and even the propensity to engage in violent or criminal behavior. (See
United States v. Kriesel
(9th Cir. 2013)
Given the extent of the interests involved, it should not be taken for granted that the State's current practices or statutory provisions prohibiting misuse will mitigate the interference with an arrestee's expectation of privacy. (Cf. maj. opn.,
ante
,
Moreover, it is precisely this kind of intrusion that justifies California's heightened privacy protections in the first place. As discussed above, the purpose of the constitutional grant of privacy is to protect citizens from governmental surveillance and other forms of information gathering. The DNA Act permits the government to store DNA with the potential to reveal information of an indisputably private nature. Article I, section 13 of our state Constitution-as informed by the privacy clause of article I, section 1 -protects against such an invasion of core privacy. (See
Ruggles
,
supra
, 39 Cal.3d at pp. 9-10,
Furthermore, that the DNA Act invades the privacy of
arrestees
in particular does not mean we can ignore the resulting privacy invasion-or the risks associated with it. We have rejected the premise that an individual placed under arrest-even custodial arrest-lacks a significant, constitutionally protected interest in the privacy of her person. We have done so for good reason: valid justification to arrest an individual for a specific offense does not consequently extinguish all of her privacy rights, nor does it imply-without more-that there is a basis to suspect her of involvement in any other kind of felony. (
Brisendine, supra
,
Nor can we consider the privacy interests at stake in this case solely from the perspective of an individual who has been lawfully arrested and convicted. It is undisputed that Buza was arrested with probable cause and convicted of three felonies. But Buza declined to provide a sample of his DNA during his booking into jail-long before his felony convictions,
Suppose we waited instead for another case brought by a plaintiff lawfully arrested for, and ultimately acquitted of, a felony charge. When this hypothetical plaintiff is told to submit to a DNA test upon arrest, she is presented with only two choices, both causing irreparable harm: (1) she could refuse the test and be lawfully prosecuted for (and found guilty of) a misdemeanor; or (2) she could submit to the test, and suffer the very harm to her privacy that she would later attempt to mitigate partially by seeking expungement. We may on occasion tolerate some degree of privacy harm and still uphold a search and seizure as reasonable. (See, e.g.,
People v. Medina
(1972)
Unlike the Maryland statute scrutinized in
King
, the DNA Act does not require that a
lawful
arrest have occurred before DNA collection, as it permits the retrieval and processing of a DNA sample before a magistrate or other judicial officer has determined that the arrest was supported by sufficient probable cause. This aspect of the DNA Act vastly expands the number of individuals subject to its dragnet. As Justice Liu points out, almost one in five felony arrestees are released prior to a judicial determination of probable cause. Yet all of these individuals must allow their DNA to be collected and retained by the state (for at least 180 days) under threat of criminal sanction. ( Pen. Code, § 299, subd. (c)(2)(D).) Even more invidiously, the fact that the
The DNA Act's lack of an automatic expungement provision exacerbates such concerns. Again, unlike the Maryland statute, the Act does not require the destruction of the DNA sample and removal of any resulting profile from state and federal databases if the individual at issue is never convicted of a felony. Instead, the DNA Act requires a discharged arrestee to initiate expungement proceedings and navigate the resulting process himself. Although the Department of Justice assures us that the "vast majority of requests have resulted in expungement," the Attorney General does not provide-and the record does not elsewhere contain-any information about how often eligible individuals initiate expungement proceedings in the first place. The absence of automatic expungement proceedings, and the employment of a process that requires the arrestee to initiate expungement and provide required documentation, heightens the possibility that the State will retain possession of DNA profiles for individuals who were never convicted of qualifying felonies, who may never have been charged with a felony in the first place, or who may not have been lawfully arrested at all.
Ironically, the interests advanced by the Attorney General on behalf of the state-
Nowhere does the majority seem to reject the merits of that approach. (See maj. opn., ante , 230 Cal.Rptr.3d at pp. 695-696, 413 P.3d at pp. 1144-1145.) Instead, it argues that since DNA processing is so slow, processing of the arrestees' samples in practice-regardless of what the law permits-usually does not take place until judicial probable cause has been made anyway. ( Id. at pp. 695-696, 413 P.3d at pp. 1144-1145.) The slow operation of existing technology and institutional practices thus become features supporting the constitutionality of the Act. As odd as this argument is, its force is sapped further still by the Act's blanket permission for the processing of DNA samples even if a magistrate finds that the arrest was without probable cause. (See Pen. Code, § 298 [requiring jail officials to "promptly" forward biological samples to the Department of Justice without providing any exception for those wrongfully arrested].) The burden remains on the individual-even if wrongfully arrested or later exonerated-to seek expungement. But were we to strike down the Act, automatic expungement would become law. (See Pen. Code, § 299 [conditional provision to the Act requiring automatic expungement of DNA profiles from databank when the arrests do not lead to valid convictions].) In contrast, the existing statute creates a default regime that requires DNA samples from anyone subject to a felony arrest-irrespective of whether they will eventually be judged guilty or whether a neutral magistrate finds probable cause-and leaves the state in a position to retain such information indefinitely unless expungement is pursued and achieved.
None of these observations implies we should strike down the DNA Act because we prefer its replacement on policy or prudential grounds. (Cf. maj. opn.,
ante
, 230 Cal.Rptr.3d at pp. 699-700, fn. 7,
While the DNA Act is an initiative entitled to a presumption of validity, the searches it permits-and in fact, requires
Insofar as the majority would lean on majoritarian impulses to imply that something more is required because the Act is an initiative passed by voters (see maj. opn.,
ante
, 230 Cal.Rptr.3d at pp. 695-697, 702-703, 708-709, 413 P.3d at pp. 1144-1145, 1150, 1155), we note that there is no formal distinction in our role in evaluating initiatives versus legislation enacted by representative political institutions. (
Calfarm
,
supra
, 48 Cal.3d at pp. 814-815,
In the final analysis, arrestees do not have such diminished expectation of privacy as to permit the State to retain their DNA profile and conduct repeated searches of it. As such, when weighed against the State's generalized interest in identifying arrestees and solving crimes, an arrestee's reasonable privacy interest in his or her genetic information-uniquely protected under the California Constitution-must win. (
Triggs
,
supra
,
IV.
The DNA Act unlawfully invades people's reasonable expectation of privacy in their personal genetic information. Any diminished expectation of privacy arrestees may or may not have in their genetic code does not justify an intrusion of this magnitude. The government's asserted interest in identifying individuals in its custody and solving crimes may prove important in justifying a variety of practices. But it does not countenance this intrusion, as the government's rationale for the DNA Act is neither borne out by the Act's implementation nor consistent with our precedent's restrictions on suspicionless searches. This makes the DNA Act unconstitutional under our state charter as applied to felony arrestees-individuals, like Buza, who are not yet known to be lawfully arrested, much less found guilty. Far from invalidating the work of the California electorate, striking down the Act would vindicate our core constitutional values, which recognize that our citizens have the
With respect, I dissent.
WE CONCUR:
LIU, J.
PERLUSS, J. *
Notes
Defendant did not invoke the California Constitution in the trial court or in his first round of appellate briefing, instead relying solely on the Fourth Amendment. The Court of Appeal, however, relied on the California Constitution in its decision on remand after King . We accordingly address the questions raised under both the Fourth Amendment and article I, section 13 of the California Constitution.
States are, of course, under no obligation to classify any particular set of crimes as "violent," and different states often classify similar crimes differently. Such "interstate statutory differences do not control the meaning of the Fourth Amendment." (
Robinson
,
supra
,
In his brief, defendant read the Maryland law's reference to arrestees "charged" with certain offenses as prohibiting the collection of DNA until a prosecutor decides whether to file qualifying charges following arrest. (See Md. Code. Ann., Pub. Saf., § 2-504(b)(1).) But the Attorney General notes that in Maryland, charges are often filed by the police officer, rather than the prosecutor. (Md. Rules, rule 4-211(b)(2).) The high court's opinion in King did not address the meaning or significance of this provision of the Maryland law; its analysis was focused not on the nature of the charging decision, but on the fact of an arrest supported by probable cause.
On the contrary, it appears that defendant acknowledged from the outset that there was probable cause to arrest him. While being placed in a patrol car at the scene, defendant spontaneously stated, "I didn't think it would work" and noted that the officer who initially observed him in the act had "[p]erfect timing, him coming up the hill like that." According to his own testimony at trial, moreover, he anticipated he would be charged for his acts. Justified as his protest was, he testified, he knew "how the legal system works" and that "[t]hey [we]re going to regard this as an illegal act."
A different provision of the DNA Act requires the Department of Justice DNA Laboratory to "remove [a] suspect sample from its databank files and databases" after two years upon confirmation that the "person is no longer a suspect in a criminal investigation." (Pen. Code, § 297, subd. (c)(2).) The parties have not addressed the relevance of this provision, if any.
California DOJ, Streamlined DNA Expungement Application Form, < http://ag.ca.gov/bfs/pdf/expungement_app.pdf > [as of Apr. 2, 2018]. As the Attorney General notes, the Frequently Asked Questions page on the DOJ website indicates that the expedited expungement process is generally completed within two to four weeks. (See < https://oag.ca.gov/bfs/prop69/faqs#retention> [as of Apr. 2, 2018].)
As Justice Cuéllar notes in his dissent ( post , 230 Cal.Rptr.3d at pp. 733-735; 413 P.3d at pp. 1176-1177), after we granted review in this case, the Legislature enacted versions of Penal Code sections 298 and 299 to become operative were this court to affirm the Court of Appeal's decision below. These include provisions for more automatic expungement and for delay in analyzing samples until probable cause for the arrest has been judicially determined. (Stats. 2015, ch. 487, §§ 3, 5.)
It goes without saying that our job is not to decide which version of the statute we prefer, but instead to determine whether the DNA Act, as enacted by California voters, is constitutional as applied to defendant in the case before us. The legislative amendments themselves make this clear. The Legislature did not attempt to substitute these statutory provisions for those the voters approved; whether it could do so, consistent with its role under Proposition 69, is therefore a question not presented here. (See Prop. 69, supra , § V, subd. (c) [amendments may be made only "to enhance the use of DNA identification evidence for the purpose of accurate and expeditious crime-solving and exonerating the innocent"].) The Legislature instead enacted the provisions as a kind of fallback measure, providing that the amendments would come into force only if we affirm the lower court's ruling as to the statutory sections' unconstitutionality as applied in this case (presumably on a basis that would not equally undermine the validity of the Legislature's conditional amendments). We accordingly focus solely on the law as the voters enacted it, as applied to the facts of the case before us.
Our colleagues in dissent would go further; they argue that we should take no special account of the federal high court's interpretation of language common to the United States and California Constitutions. (See dis. opn. of Liu, J., post , 230 Cal.Rptr.3d at pp. 715-716, 413 P.3d at pp. 1160-1162; dis. opn. of Cuéllar, J., post , 230 Cal.Rptr.3d at pp. 719-720, 413 P.3d at pp. 1164-1165.) But as Raven v. Deukmejian made clear in rejecting an effort to eliminate our independent interpretive authority altogether, the approach we have described is neither a relic of a long-distant past nor a recent innovation. We will accordingly follow this court's long-standing policy and practice of giving meaningful and careful consideration to federal high court decisions construing parallel constitutional text, without in any way denying or denigrating our power and duty to depart from those decisions when sufficient reasons appear.
The dissenting opinions ask why "the order in which this court decides an issue vis-à -vis the high court" should be of any significance. (Dis. opn. of Cuéllar, J.,
post
,
Justice Liu (dis. opn.,
post
, 230 Cal.Rptr.3d at pp. 713-714, 413 P.3d at pp. 1159-1160) invokes language from
Florida v. Bostick
(1991)
Presiding Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I would also note that the DNA Act authorizes cheek swabs "immediately following arrest" and thus encompasses field searches. (Pen. Code § 296.1, subd. (a)(1)(A).)
None of the cases the Attorney General cites is to the contrary. The Attorney General cites
United States v. Mitchell
(3d Cir. 2011)
United States v. Kelly (2d Cir. 1932) 55 F.2 67, 69, which the majority relies on here (maj. opn., ante , 230 Cal.Rptr.3d at pp. 703-705, 413 P.3d at pp. 1151-1152), likewise demonstrates only that fingerprinting is a commonplace means of identification-not that it is, like DNA collection, a search that implicates an individual's constitutional rights.
Presiding Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.