Fault Lines
11 December 2017

Last Man Standing: A Final Challenge to DNA Collection Laws?

Nov. 23, 2015 (Mimesis Law) — Last week, briefing wrapped up in what may be the last gasp of a challenge at the seemingly unfettered expansion of DNA databases (full disclosure, I am one of the amici). DNA solves crimes. News articles trumpet the unparalleled capabilities of DNA, and it would be difficult to argue with the success of science sealing convictions. Because of this, we collect DNA—lots of it. In fact, many states have blessed the collection of DNA from arrestees in addition to convicted offenders.

People v. Buza is no stranger to the appellate process. Twice, California’s intermediate appellate court—the Court of Appeal—unanimously found the California law that permits DNA collection from felony arrestees to be unconstitutional. The second opinion (late 2014) followed the U.S. Supreme Court’s decision in Maryland v. King, a 2013 case that endorsed DNA collection from arrestees under Maryland state law.

Since the King case, courts that tackled DNA collection shadowed the Supreme Court’s reasoning and found that DNA collection and profiling merely constitutes an “identification” no more intrusive than taking fingerprints. I wholly disagree (scientifically, legally, and philosophically) with the comparison of DNA to fingerprints, but that’s a debate better saved for another day.

Can a challenge mounted in California succeed where others have failed? There are some notable differences between the California collection law and the Maryland statute, which would give the court latitude to deviate from the King decision.

In a nutshell, Maryland has more protections than the California law does. For example the California law broadly sweeps in any person arrested for a felony; the Maryland law, on the other hand, pertains to burglary or violent crimes. Maryland requires probable cause on the qualifying crime while California collects and processes DNA regardless of probable cause. California also permits familial DNA searches in the offender database; Maryland does not. Most significantly, expunging DNA (i.e., when the arrestee is acquitted or charges are dropped) is laborious and puts the onus on the arrestee. Maryland provides for automatic expungement.

Those differences were enough to dissuade the California Court of Appeal from following King. It may also be the first time that a California court brazenly borrowed quotes from Justice Scalia (he wrote a lengthy dissent in King). Will the differences be enough for the California Supreme Court?

Maybe.  But nothing prevents California—or any state legislature—from quickly amending its collection laws to avoid the legal fall from grace if a statute is ruled unconstitutional. Moreover, the numbers demonstrate the strong interest California has in keeping the DNA gates open: In 2014, “California arrested 412,307 adults on felony charges. And because (unlike Maryland) California has no automatic expungement provision, fewer than .02% of those people— only 98 people as of June 2014—will ever get their DNA out of the database — even if they are never charged or convicted.”

The biggest hurdle is, of course, the King case. SCOTUS basically eviscerated any Fourth Amendment protections in DNA collection. This maneuver disproportionately affects the already marginalized members of society and, as Scalia put it, “burden[s] uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.”

Consequently, the Buza case probably has to focus on the privacy protections rather than the Fourth Amendment issues. Technological advancements in DNA are coming, and what we don’t know can hurt us. DNA phenotyping (i.e., developing a physical description of a suspect based on his or her DNA profile), familial searching, and Rapid DNA (getting results in as little as two hours) are no longer figments of science fiction.

Innocent until proven guilty used to mean something, but DNA evidence is a powerful tool that seems to trump that very protection. While efficiency and speed are critical to a successful police investigation, the integrity of a criminal justice system must be maintained.

We shudder at the vast amount of electronic information collected about us (social media trolling, cell phone data, online purchase histories) for law enforcement and national security purposes. Court decisions routinely denounce such practices. But when it comes to genetic information we take it less personally.

If law enforcement can analyze a tiny bit of DNA in a few hours and suddenly know your relatives, what you look like and whether you are genetically predisposed to be lactose intolerant, then perhaps we’d all take a closer look at DNA collection laws.

2 Comments on this post.

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  • MoButterMoBetta
    23 November 2015 at 12:18 pm - Reply

    “Technological advancements in DNA are coming, and what we don’t know can hurt us.”

    Contamination, intentional or unintentional, is already a very real threat.

    I’m terrified by the case of Lukis Anderson. His DNA was found under the fingernails of a murder victim but he didn’t kill or interact with him at all. He had an ironclad alibi. Juries believe DNA like it is the word of God, if Anderson didn’t have an ironclad alibi, he would be serving life today.

    The collection process and storage process today is cause for serious concern, let alone the future.

    http://sanfrancisco.cbslocal.com/2013/06/28/south-bay-paramedics-likely-brought-innocent-mans-dna-to-crime-scene/

  • Eva
    24 November 2015 at 12:11 pm - Reply

    What about those sites that collect your DNA to give you information on your genetic ethnicity? What protections or laws that citizens can rely on to protect themselves from unwarranted attempt at gathering your personal genetic information? From what I understand there are no HIPPAA laws which can protect consumers against questionable activity.