Court labels DNA collection illegal search

For a second time, a state appeals court in San Francisco Wednesday struck down a California law that requires police to collect DNA samples from anyone arrested on suspicion of a felony.

The law, which went into effect in 2009, is part of a ballot initiative approved by state voters in 2004. In Wednesday’s decision, a three-judge panel of the Court of Appeal said the measure violates the state constitutional rights to privacy and freedom from unreasonable searches.

The court ruled in the case of Mark Buza, who was convicted in San Francisco Superior Court in 2009 of arson of a police car and of refusing to provide a DNA sample on a cheek swab after he was arrested.

Justice Anthony Kline wrote that the measure violated the state constitution because the DNA was not being gathered for supposed purpose of identifying suspects, but rather for investigating unrelated crimes and for adding to DNA databases for future crime-solving:

“The apparent actual purpose for taking DNA samples at this early stage — investigation — cannot be squared with established constitutional principles protecting against suspicionless searches.”

In 2011, the appeals court in a ruling by Kline also struck down the law, but under the terms of the U.S. Constitution.

Then, in 2013, the California Supreme Court ordered the appeals panel to reconsider the case in light of a U.S. Supreme Court ruling that year that upheld a similar Maryland law that required collection of DNA from anyone arrested on suspicion of a serious felony.

The U.S. high court said by a 5-4 vote the Maryland measure did not violate the federal constitution. In today’s decision, the state appeals court said the California law remained invalid under the state Constitution because the state document provides broader rights than the federal Constitution.

The ruling could be appealed to the California Supreme Court by state Attorney General Kamala Harris. A spokesman for Harris had no immediate comment on whether the attorney general will appeal. A similar challenge to the law is pending in federal court in San Francisco before U.S. District Judge Charles Breyer.

The federal lawsuit was filed by four citizens who had their DNA collected after being arrested, but who, unlike Buza, were never charged with a crime. In a brief order issued today, Breyer put the federal case on hold until the state case is resolved.