California has a law that entitles the government to your DNA if you’ve been arrested for a felony. It matters not if the arrest was baseless—any felony arrest, regardless of the case’s eventual outcome, lets them take, keep, and analyze your DNA. (Thanks, Proposition 69 voters.)
To be fair, most states have similar laws. The U.S. Supreme Court upheld Maryland’s version in a June, 2013 ruling. (Maryland v. King, 133 S. Ct. 1958 (2013).) It equated DNA collection via cheek swab with routine booking procedures like fingerprinting and photographing. That means that DNA-collection-after-arrest laws are here for the long haul. But it doesn’t—and shouldn’t—mean that all such laws are created equal.
Different DNA Laws
The Ninth Circuit Court of Appeals heard argument last month in a challenge by the ACLU to California’s cheek-swab law. (Haskell v. Harris, 727 F.3d 916 (9th Cir. 2013).) The ACLU and similarly concerned groups contend that the statute violates the Fourth Amendment prohibition against unreasonable searches and seizures. They argue that it differs fundamentally from the Maryland law that the Supreme Court upheld.
Maryland’s law authorizes the collection of DNA of only those arrested for serious offenses—that is, crimes of violence and burglary. After taking a buccal swap of a suspect, authorities can’t do anything other than store it until arraignment. At arraignment, a judge or similar judicial officer determines whether there was probable cause for the arrest. If the judge doesn’t find “PC” (granted, a rarity), then the authorities must destroy the DNA sample. They must also automatically destroy samples of defendants who aren’t ultimately convicted or whose convictions are overturned. (King, supra.)
California’s law, on the other hand, doesn’t have these protections. Not only does it apply to a broader class of suspects, but it also makes collection easier to come by and harder to undo. (Hamed Aleaziz, “9th Circuit reconsiders DNA law,” Daily Journal, December 10, 2013.)
Here’s hoping that the Ninth trims the excesses of California’s law. DNA collection statutes are here to stay, but at least one court isn’t rubber-stamping them. If others don’t act similarly, we’ll eventually see officers, Q-tips in hand, telling detained motorists to “open up.”