The Los Angeles Criminal Law Blog

Felony Arrestee DNA Collection Gets Second Look by Appeals Court

America is a wonderful place. We are granted a lot of freedoms, many of which were intended to protect us from tyranny and overreaching by our sovereign powers, including federal, state, and local governments. One of the most fundamental rights is the right to be protected against unreasonable search and seizure.

Now, some will say, that in this modern age, certain freedoms must be limited for the safety of the masses. Take a look at the PATRIOT Act, for example. Whether or not you are in favor of that controversial measure, there's no question that it curtails some of our freedoms in the areas of search and seizure.

A more local example, which will now be reviewed by the full Ninth Circuit Court of Appeals, is California's Proposition 69, a DNA collection law passed in 2004, reports the Los Angeles Times.

The law allows law enforcement agencies to collect DNA from all felony arrestees and enter it into the state's DNA databank. With that information, the hope is that cold cases and future crimes that have DNA evidence can be quickly checked against millions of arrestees and quickly solved. That sounds great, right?

Well, yeah, it does. We put criminals away, (such as the 'Austin Powers' Gang Rape cold case that was solved in 2008). However, it comes at a cost of further erosion of our constitutional freedoms. The felony arrestees have not been convicted of a crime. Indeed, many are eventually released due to innocence or lack of evidence. They are, in effect, innocent people being searched at their most basic level.

The relevant constitutional right has limits. Search and seizure is obviously not completely prohibited. Instead, the officer must have probable cause to believe that you have committed a crime before digging through your trunk or raiding your bedroom closet. And in many of these felony cases, an argument could be made that taking their DNA was supported by probable cause, especially for those arrested of crimes of sexual assault or murder.

However, what about a person arrested for grand theft carcass? It's a borderline felony offense. Let's say a young woman was grieving over a lost pet cow, and had a dispute over what to do with the remains with her uncle, Farmer John. John calls the cops when the cow's body disappears, because he is a crochety bastard.

The charges are dropped, but her DNA is now in the database. Whether or not she actually commits a future crime, she has now had her genetic code searched, and her DNA had nothing to do with her arrest.

Is that fair? Do the ends justify the means? Don't we do the same thing with fingerprints? The Ninth Circuit Court of Appeals previously had a smaller, 3-judge panel review the law, but because they came to a split-decision on the controversial issue, the entire 11-judge panel will now review the case.

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