Calif. AG defends state’s DNA collection of felony arrestees as vital law enforcement tool

Calif AG defends DNA samples from felony arrestees

SAN FRANCISCO — A swab of saliva was at the center of a legal battle Tuesday over DNA collection of felony suspects and privacy rights.

A three-judge panel of the 9th Circuit U.S. Court of Appeals was considering a bid by the American Civil Liberties Union to suspend the DNA collection of anyone in California facing felony charges while the ACLU’s federal lawsuit is pending.

A lower court judge earlier rejected the ACLU’s request in a legal challenge to California’s Proposition 69, which was passed in 2004 and enacted on Jan. 1, 2009.

The ACLU alleges that the DNA collection is an unconstitutional search and seizure since some of the suspects who submit DNA samples through a swab of their cheek will later be exonerated.

Attorney General Jerry Brown, whose job is to defend the law, argued before the hearing that the DNA collection is akin to fingerprinting anyone who is arrested. He also said the collection is a powerful law enforcement tool.

“So far, DNA collected from arrestees has led to the identification of suspects in more than 970 rapes, murders and other very serious crimes,” said Brown, the Democratic nominee for governor in California.

The samples are stored in the state’s DNA database, which has grown to 1.5 million samples.

During the hearing, Judge Mylan Smith Jr. appeared to side with Brown, saying: “I frankly think taking your fingerprints is more intrusive.”

The two other judges on the panel were more guarded in their position. Judge Willy Fletcher wondered whether the government had the ability to destroy samples of felony suspects who are later exonerated.

Deputy Attorney General Daniel Powell said the state’s population was too vast to automatically delete those samples from the database, but that the exonerated could write a letter to the state Department of Justice asking for its removal.

Powell said that collecting the DNA is not an intrusive way of identifying criminal suspects and that keeping the samples was constitutional, even if the arrestee was later cleared of charges.

“We keep fingerprints, and we keep arrest records long after a suspect has been acquitted,” Powell said.

ACLU attorney Michael Risher told the appeals panel that investigators have expanded the use of DNA so far that privacy rights are being violated. He argued that a cheek swab differs from fingerprints because it requires probing the body.

Further, he said that DNA and fingerprints differ greatly in what they tell investigators about each suspect.

“Our fingerprints tell us nothing about ourselves,” Risher said. “DNA tells us everything.”

Risher urged the court to issue to bar police from collecting the samples until the lawsuit is resolved.