State Court Rules DNA Collection Is Unconstitutional
This decision, arrived at on August 4, 2011 in a case titled People v Mark Buza (2011) 197 Cal.App.4th 1424 (slip opinion at 2011 DJDAR 11741), is significant because it reverses a nationwide trend upholding DNA collection laws.The Reader’s Digest Version: In 2011, in this case, People v. Buza, summarized below, the First Appellate District Court of California held that it was an unconstitutional search and seizure for police to collect DNA from everyone who is merely arrested. This has since been partially overturned and law enforcement is legally permitted to collect DNA samples from anyone arrested for a felony.
Here in California, Proposition 69 (“The DNA Act”), a 2004 ballot measure that allowed the collection of DNA from those arrested for a felony, was seen by voters as a useful means of expanding the state’s DNA database to link suspects with unsolved crimes. However, the law was often criticized for encouraging police to arrest a person just because the police wanted a DNA sample from that person.
There are countless anecdotal examples of police arresting someone, for example for DUI, just to obtain saliva samples on a breath test machine used to sample the suspect’s breath for his or her blood alcohol content (BAC). Some (including us at Greg Hill & Associates) saw such pretextual searches as Fourth Amendment violations, as unlawful search and seizures without a warrant.
The justices also made it clear that their decision in Buza does not overturn the DNA Act, but it did reverse Mr. Buza’s misdemeanor conviction for refusing to provide a DNA sample when he was arrested by San Francisco police in 2009 for allegedly setting a police car on fire (we find it amazing that such conduct is not a felony).
Constitutional rights advocates cheered the ruling, saying that it was only a matter of time before the DNA Act simply was overturned. Such advocates noted that the U.S. Supreme Court has never allowed suspicionless searches to find evidence of crime outside the context of the arrest, before probable cause to search was determined.
Here in Southern California, this ruling is likely to discourage a widespread practice in Los Angeles and Orange County where a person is arrested for even a misdemeanor, only to be offered a release if he or she provides a DNA sample, as is common in Orange County.
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For summaries of some of the cases we have handled, click here.