KLINE, P. J. —
The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Database and Data Bank
We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California act's application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.
Shortly after 3:00 o'clock on the morning of January 21, 2009, San Francisco Police Sergeant Jody Kato saw an orange glow emanating from a parked police car. When he realized the vehicle was on fire he saw a man, later identified as appellant, pop up from behind the vehicle and run into a nearby wooded area holding something in his hand. When another officer called out for him to surrender, appellant stepped out of the woods with his hands up. A search of the wooded area produced a road flare and a bottle containing a mixture of oil and gasoline. Matches were found in appellant's pocket and a container of oil was found in his backpack. A fire department investigator concluded that all four tires of the patrol car had been damaged by fire, and traces of polystyrene, gasoline residue and/or medium weight oil were found on two of the tires.
Several hours after his arrest, while he was confined in county jail and prior to any appearance before a magistrate or judge, appellant was asked to
On February 17, 2009, appellant was charged by information with arson (§ 451, subd. (d) — count 1); possession of combustible material or incendiary device (§ 453, subd. (a) — count 2); vandalism (§ 594 — count 3); and refusal or failure to provide a DNA specimen (§ 298.1, subd. (a) — count 4). Appellant pleaded not guilty to all four counts.
With respect to the first three counts, appellant admitted at trial that he set fire to the patrol car's tires using a mixture of oil, gasoline, and Styrofoam as an accelerant. He did not commit his acts maliciously, he testified, but to protest what he considered a corrupt government and system and to call attention to a political group he had formed, whose Web sites had been "deleted from the Internet."
As to the fourth count, shortly after appellant's arrest and while he was in county jail, San Francisco Sheriff's Deputy Kenneth Washington advised appellant that state law required him to provide a DNA sample, which would be obtained by swabbing the inside of his cheek with a cotton-tipped swab. When appellant stated he did not wish to provide a sample, Deputy Washington showed appellant a Penal Code section 296 collection form which stated "the law about 296 PC requirements." After appellant read the form, Deputy Washington again asked him to provide a sample, and appellant again refused. Appellant continued to refuse after being advised that his refusal was a misdemeanor offense with which he would be charged under section 298.1. Deputy Washington stated that provision of a DNA sample was required of all persons arrested for a felony offense, appellant had not been singled out, his DNA was not sought to connect him to evidence found at the scene, and it was not used for that purpose. Washington testified that at the time San Francisco deputy sheriffs seek a DNA sample from arrestees they also obtain two thumbprints and a signature, and he apparently had no difficulty obtaining these items from appellant.
On April 22, 2009, appellant unsuccessfully moved for judgment of acquittal on count 4, contending that his arrest for a felony offense does not create a constitutionally adequate basis for requiring him to provide a biological sample.
On April 30, 2009, the jury returned a verdict finding appellant guilty of all counts. That same day, the court ordered appellant to provide a DNA sample prior to sentencing. On May 28, 2009, after learning of appellant's refusal to comply with this order, the court issued an order permitting the San Francisco
Appellant was sentenced to the low term of 16 months in state prison on count 1, with an additional concurrent 16-month sentence on count 2, and a concurrent six-month county jail term on count 4, refusal to provide a DNA sample. A 16-month sentence on count 3 was stayed pursuant to section 654. The court granted appellant appropriate custody and conduct credits, imposed appropriate restitution fines, and ordered him to register as an arson offender under section 457.1. The court also informed appellant that he would be included in the state's DNA and forensic identification database and databank program.
After this court reversed the conviction on count 4, the California Supreme Court granted respondent's petition for review (People v. Buza
California law enforcement officials have been authorized to collect forensic identification blood, saliva or buccal (cheek) swab samples from persons convicted of certain serious crimes since 1984. (See former § 290.2, added by Stats. 1983, ch. 700, § 1, p. 2680.) In 1998, the Legislature enacted the DNA Act (§§ 295-300.3; Stats. 1998, ch. 696, § 2, p. 4571), which required "DNA and forensic identification data bank samples" from all persons convicted of specified offenses. (§ 295, subd. (b)(2).)
At the November 2004 general election, California voters amended the DNA Act by enacting Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. That measure significantly enlarged the scope of persons subject to warrantless DNA searches by, among other things, providing that, beginning on January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for or charged with any felony. (§ 296, subd. (a)(2)(C).)
Pursuant to the DNA Act, collection of DNA must take place "immediately following arrest, or during the booking ... process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody." (§ 296.1, subd. (a)(1)(A).) DNA samples are ordinarily limited to collection of inner cheek cells of the mouth (buccal swab samples) with a small stick. (§ 295, subd. (e).) The taking of a DNA sample is mandatory; law enforcement officials lack discretion to suspend the requirement. (§ 296, subd. (d); People v. King (2000) 82 Cal.App.4th 1363, 1373 [99 Cal.Rptr.2d 220].)
After the sample is taken, it is sent to the DNA Laboratory of the California Department of Justice (DOJ), which is responsible for the management and administration of the state's DNA and Forensic Identification Database and Data Bank Program and which stores, correlates and compares forensic identification samples for use in criminal investigations. (§§ 295, subds. (f), (g), (i)(1)(C), 295.1, subd. (c); People v. King, supra, 82 Cal.App.4th at p. 1370.) The act directs the DOJ to analyze the DNA "only for identification purposes." (§ 295.1, subd. (a).) A genetic profile is created from the sample based on 13 genetic loci known as "noncoding" or "junk" DNA, because they are not known to be associated with any particular genetic trait, disease or predisposition. (King, supra, 569 U.S. at pp. ___-___, ___ [133 S.Ct. at pp. 1966-1967, 1968]; Cal. DOJ Bureau of Forensic Services DNA Frequently Asked Questions (FAQ), Searching the CAL-DNA Data Bank and CODIS, Question 3 <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014].) "[F]orensic analysis focuses on `repeated DNA sequences scattered throughout the human genome,' known as `short tandem repeats' (STRs). [(J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) at pp. 147-148.)] The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as `alleles,' [(id., at p. 25)]; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve present technology, but even now STR analysis makes it `possible to determine
The profile derived from the DNA sample is uploaded into the state's DNA databank, which is part of the national Combined DNA Index System (CODIS),
The DNA Act specifies that samples and profiles may be released only to law enforcement personnel and contains penalties for unauthorized use or disclosure of DNA information. (§ 299.5, subds. (f), (i).) A person whose DNA profile has been included in the state databank may have his or her DNA specimen and sample destroyed, and database profile expunged from the databank program, if he or she "has no past or present offense or pending charge which qualifies that person for inclusion within the ... Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile." (§ 299, subd. (a).)
The expungement process, however, is neither quick nor guaranteed. An arrestee may request expungement if the relevant charges are dropped before adjudication, after the statute of limitations for filing an accusatory pleading has run, or after being found factually innocent or not guilty of the offense. (§ 299, subd. (b)(1), (3), (4).) The arrestee must submit a request to the trial court and prosecutor of the county where the arrest occurred and to the DOJ's DNA Laboratory; the court must then wait 180 days before it can grant the request; the court has discretion to grant or deny the request and its order is not reviewable by appeal or by writ. (§ 299, subd. (c)(1), (2)(D).)
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." (U.S. Const., 4th Amend.) Subject only to a few specifically established and well-delineated exceptions not applicable here, warrantless searches are per se unreasonable under the Fourth Amendment (Missouri v. McNeely (2013) 569 U.S. ___ [185 L.Ed.2d 696, 133 S.Ct. 1552, 1558]; Ontario v. Quon (2010) 560 U.S. 746, 760 [177 L.Ed.2d 216, 130 S.Ct. 2619]); the state thus bears the burden of showing that the search at issue is reasonable and therefore constitutional. (People v. Williams (1999) 20 Cal.4th 119, 127 [83 Cal.Rptr.2d 275, 973 P.2d 52].) "`As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is "reasonableness."' (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652 [132 L.Ed.2d 564, 115 S.Ct. 2386].) [¶] `Reasonableness... is measured in objective terms by examining the totality of the circumstances' (Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347, 117 S.Ct. 417]), and `whether a particular search meets the reasonableness standard "`is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'"' (Vernonia School Dist. 47J ... at pp. 652-653; see also Samson v. California (2006) 547 U.S. 843, 848 [165 L.Ed.2d 250, 126 S.Ct. 2193] (Samson).)" (People v. Robinson (2010) 47 Cal.4th 1104, 1120 [104 Cal.Rptr.3d 727, 224 P.3d 55].)
Federal and state statutes authorizing collection of DNA samples from persons convicted of qualifying offenses have been upheld universally by federal and state courts, albeit with significant debate and disagreement among the judges who decided these cases. (E.g., Banks v. U.S. (10th Cir. 2007) 490 F.3d 1178; U.S. v. Weikert (1st Cir. 2007) 504 F.3d 1; U.S. v. Amerson (2nd Cir. 2007) 483 F.3d 73; U.S. v. Hook (7th Cir. 2006) 471 F.3d 766; Johnson v. Quander (D.C. Cir. 2006) 370 U.S. App.D.C. 167 [440 F.3d 489]; U.S. v. Conley (6th Cir. 2006) 453 F.3d 674; U.S. v. Kraklio (8th Cir. 2006) 451 F.3d 922; U.S. v. Sczubelek (3rd Cir. 2005) 402 F.3d 175; Groceman v. U.S. Dept. of Justice (5th Cir. 2004) 354 F.3d 411; U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813 (Kincade); Wilson v. Collins (6th Cir. 2008) 517 F.3d 421 [Ohio]; Nicholas v. Goord (2nd Cir. 2005) 430 F.3d 652 [New York]; Padgett v. Donald (11th Cir. 2005) 401 F.3d 1273 [Georgia]; Green v. Berge (7th Cir. 2004) 354 F.3d 675 [Wisconsin]; Rise v. Oregon (9th Cir. 1995) 59 F.3d 1556 (Rise) [Oregon]; Jones v. Murray (4th Cir. 1992) 962 F.2d 302 [Virginia]; People v. Robinson, supra, 47 Cal.4th at p. 1121; State v. Hutchinson (2009) 2009 ME 44 [969 A.2d 923, 932]; State v. Martin (2008) 184 Vt. 23, 46 [955 A.2d 1144]; State v. Bartylla (Minn. 2008) 755 N.W.2d 8, 18; State v. O'Hagen (2007) 189 N.J. 140 [914 A.2d 267, 280-281].)
These cases emphasize, on the one hand, that convicted offenders are subject to "a `broad range of [restrictions] that might infringe constitutional rights in free society'" and have "severely constricted expectations of privacy relative to the general citizenry" (Kincade, supra, 379 F.3d at pp. 833-834; see U.S. v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947 (Kriesel)), including no reasonable expectation of privacy in their identity. (Kincade, at p. 837; Kriesel, at p. 947; Hamilton v. Brown (9th Cir. 2010) 630 F.3d 889, 895; Rise, supra, 59 F.3d at p. 1560; People v. Robinson, supra, 47 Cal.4th at
In King, the United States Supreme Court moved beyond the realm of convicted offenders, rejecting a Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with "serious crimes." (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1970].) King described the "legitimate government interest" served by the Maryland DNA law as "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody." (Ibid.) The court viewed a suspect's "identity" as including not only "his name or Social Security number" but also his or her criminal history, the latter being "critical" for the police to know when processing a suspect for detention because "[i]t is a common occurrence that `[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.'" (Id. at p. ___ [133 S.Ct. at p. 1971].) For this purpose, the court stated, "the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides." (Id. at p. ___ [133 S.Ct. at p. 1972].) "DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police," producing "a more comprehensive record of the suspect's complete identity." (Ibid.)
Employing this definition of "identity," the court saw DNA identification of arrestees as helping ensure safety in a custodial setting by allowing law enforcement officers to "know the type of person whom they are detaining" and "make critical choices about how to proceed." (King, supra, 569 U.S. at p. ___ [133 S.Ct at p. 1972].) DNA information could help law enforcement assure an arrestee's availability for trial by indicating arrestees who had committed more serious offenses in the past and might be more inclined to flee in order to avoid investigation that could expose the other offenses. (Id. at pp. ___-___ [133 S.Ct. at pp. 1972-1973].) The information could also inform bail decisions, because an arrestee's "past conduct is essential to an assessment of the danger he poses to the public." (Id. at p. ___ [133 S.Ct. at p. 1973].) Acknowledging that it may take some time to obtain the results of DNA testing, the court observed that actual release often does not occur for a considerable time after the decision to release is made, information about the arrestee's "identity and background" could be relevant to conditions of
On the other side of the balance, the court held that the privacy expectations of a person taken into police custody "`necessarily [are] of a diminished scope.'" (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1978], quoting Bell v. Wolfish (1979) 441 U.S. 520, 557 [60 L.Ed.2d 447, 99 S.Ct. 1861].) "Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, ... his or her expectations of privacy and freedom from police scrutiny are reduced." (King, at p. ___ [133 S.Ct. at p. 1978].) After finding the physical intrusion imposed by buccal swab minimal (id. at p. ___ [133 S.Ct at p. 1979]), the court offered three reasons for concluding that the processing of the DNA sample did not intrude upon privacy rights in an unconstitutional manner: Only noncoding portions of the arrestee's DNA, which would not reveal genetic traits, were analyzed; even if additional information could be gleaned from the DNA tested, the DNA was not in fact tested for such purposes; and testing for any purpose other than identification was prohibited. (Id. at pp. ___-___ [133 S.Ct. at pp. 1979-1980].)
In sum, the court held, "In light of the context of a valid arrest supported by probable cause respondent's expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1980].)
In a piercing dissent, Justice Scalia explained for himself and the three other dissenting Justices that the King majority's interpretation of the Fourth Amendment departed markedly from prior Fourth Amendment jurisprudence by allowing the search of a person for evidence of a crime for which he or she has not been arrested, in the absence of any reason to think the person is
Justice Scalia elaborated: "As ratified, the Fourth Amendment's Warrant Clause forbids a warrant to `issue' except `upon probable cause,' and requires that it be `particula[r]' (which is to say, individualized) to `the place to be searched, and the persons or things to be seized.' And we have held that, even when a warrant is not constitutionally necessary, the Fourth Amendment's general prohibition of `unreasonable' searches imports the same requirement of individualized suspicion. See Chandler v. Miller [(1997)] 520 U.S. 305, 308 [137 L.Ed.2d 513, 117 S.Ct. 1295].
"Although there is a `closely guarded category of constitutionally permissible suspicionless searches,' id., at 309, that has never included searches designed to serve `the normal need for law enforcement,' Skinner v. Railway Labor Executives' [Assn., supra,] 489 U.S. [at p.] 619 ... (internal quotation marks omitted). Even the common name for suspicionless searches — `special needs' searches — itself reflects that they must be justified, always, by concerns `other than crime detection.' Chandler, supra, at 313-314 .... We have approved random drug tests of railroad employees, yes — but only because the Government's need to `regulat[e] the conduct of railroad employees to ensure safety' is distinct from `normal law enforcement.' Skinner, supra, at 620 .... So too we have approved suspicionless searches in public schools — but only because there the government acts in furtherance of its `responsibilities ... as guardian and tutor of children entrusted to its care.' Vernonia School Dist. 47J v. Acton[, supra,] 515 U.S. [at p.] 665 ....
"So while the Court is correct to note (ante, at 1969-1970 ...) that there are instances in which we have permitted searches without individualized suspicion, `[i]n none of these cases ... did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.' Indianapolis v. Edmond [(2000)] 531 U.S. 32, 38 ... [148 L.Ed.2d 333, 121 S.Ct. 447]. That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form `reasonableness' inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court's method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong. [¶] ... [¶]
"At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest)." (King, supra, 569 U.S. at p. ___ [133 S.Ct. at pp. 1981-1982] (dis. opn. of Scalia, J.).)
The King dissenters highlighted critical issues we will return to later in this opinion, in particular the court's novel view of identification and its acceptance of the analogy between DNA testing and fingerprinting. Even aside from criticism of the court's underlying assumptions, however, we find it difficult to view King as controlling the outcome of the present case because of significant differences between the DNA Act and the Maryland law. These include that the DNA Act applies to persons arrested for any felony, requires immediate collection and analysis of arrestees' DNA even before a judicial determination of probable cause, and does not provide for automatic expungement of DNA data if an arrestee is not in fact convicted of a qualifying crime. While judicial opinions do not ordinarily indicate their applicability to disputes arising under different statutes or presenting different facts, the King majority stated its intention to create a rule of national application despite acknowledging differences in the "particulars" of various states' DNA testing statutes. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1968].)
In addition, the difference in expungement provisions affects the weight of the arrestee's privacy interests. Unlike the automatic expungement provisions of the Maryland law, California puts the burden on the arrestee to seek expungement, and outcome of the expungement process is not guaranteed. As the likelihood of expungement decreases, or the length of time necessary to obtain expungement increases, the privacy intrusion imposed by the government's retention of the DNA profile and sample increases.
Another difference between the statutes is that Maryland expressly prohibits familial DNA searches — searches in which a partial match between an individual's DNA profile and a profile in the DNA database is used to implicate a close biological relative of the DNA donor as a possible criminal suspect. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1967]; Md. Pub. Safety Code Ann., § 2-506(d).) California does not. As we later discuss, this difference is significant because familial DNA searching has nothing to do with "identifying" the DNA donor and has no use other than criminal investigation. At present, as a matter of policy, California limits familial DNA searches to DNA from convicted offenders. But this restriction is not imposed by the DNA Act.
The DNA Act also differs from the Maryland law in that it applies to all felony arrestees rather than a subset limited by the serious nature of the crime
In our view, the differences between the California and Maryland DNA laws significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment. We need not decide whether these differences require a different resolution of the issue from that of the King majority, however, as we focus our analysis instead upon the California Constitution.
While our Supreme Court has recognized a "general principle or policy of deference to United States Supreme Court decisions" in interpreting provisions of the California Constitution that are textually parallel to those of the federal Constitution (Raven, supra, 52 Cal.3d at p. 353), "even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper interpretation of the state constitutional provision is not invariably identical to the federal courts' interpretation of the corresponding provision contained in the federal Constitution. (See, e.g., Raven[, at pp.], 352-354; ... Brisendine, supra, 13 Cal.3d [at pp.] 548-551.)" (American Academy, supra, 16 Cal.4th at p. 326.) Deference is not required when "`cogent reasons,' `independent state interests,' or `strong countervailing circumstances' that might lead our courts to construe similar state constitutional language differently from the federal approach." (Raven, at p. 353.) And where California authority establishes that the California Constitution provides greater protection, the United States Supreme Court's
This point is made explicit in our state Constitution: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const., art. I, § 24.) Added to the Constitution by initiative in 1974, this provision did not create a new principle but, rather, "made explicit a preexisting fundamental principle of constitutional jurisprudence (see Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 5, 1974), analysis by Legislative Analyst, p. 26)." (Raven, supra, 52 Cal.3d at p. 354; see Brisendine, supra, 13 Cal.3d at p. 551 & fn. 19.)
Indeed, as our Supreme Court has explained, the independence of state Constitutions is fundamental to principles of federalism and demonstrated by history. (Brisendine, supra, 13 Cal.3d at pp. 549-550.) "It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse." (Id. at p. 550; see People v. Monge (1997) 16 Cal.4th 826, 872 [66 Cal.Rptr.2d 853, 941 P.2d 1121] (dis. opn. of Werdegar, J.).) "The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials." (Brisendine, at p. 550.) Thus the Brisendine court stated that "in determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution," it was "simply reaffirming a basic principle of federalism — that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens." (Id., at pp. 550-551.)
These factors all militate against applying King's analysis in the present case.
First, as we have said, the California Supreme Court has historically construed article I, section 13, of the California Constitution as imposing a "more exacting standard" than the Fourth Amendment in general, and specifically with respect to the scope of permissible searches of arrestees. (Brisendine, supra, 13 Cal.3d at p. 545; see People v. Norman (1975) 14 Cal.3d 929, 938-939 [123 Cal.Rptr. 109, 538 P.2d 237]; Ruggles, supra, 39 Cal.3d at pp. 11-12.) Second, while King — being a case of first impression — did not overrule past precedent or limit previously established rights, as Justice Scalia forcefully described, the majority opinion deviated sharply from prior Fourth Amendment jurisprudence on suspicionless searches and searches incident to arrest. Third, far from being unanimous, King was decided by a narrow majority of five justices, with four in dissent. Finally, although following King would not overturn established California doctrine affording greater rights — again, King being a case of first impression — it would run counter to our Supreme Court's prior application of a "higher standard of reasonableness under article I, section 13" (Brisendine, at p. 552), especially in the area of arrestee searches, and to California's express constitutional protection of informational privacy.
The nature of the information at issue in DNA analysis is critical to assessment of the interests at stake in this case. Cases upholding DNA statutes invariably rely heavily on analogizing DNA testing to fingerprinting. (E.g., Rise, supra, 59 F.3d at p. 1559; U.S. v. Amerson, supra, 483 F.3d at p. 87.) King viewed DNA analysis simply as "an advanced technique superior to fingerprinting in many ways." (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1976].) But "DNA contains an extensive amount of sensitive personal information beyond mere identifying information ...." (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 381 [147 Cal.Rptr.3d 135]; see Simoncelli, Dangerous Excursions: The Case Against Expanding Forensic
In general, like King, the cases upholding mandatory collection and processing of DNA have unjustifiably dismissed concerns about the extent of the personal information contained in DNA samples by limiting their attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability. (See King, supra, 569 U.S. at p. ___ [133 S.Ct. at pp. 1979-1980].) We have already mentioned that California currently uses the information contained in DNA profiles for purposes other than identification in familial searches based on convicted offenders' DNA, a point we will discuss in detail later. The fact that investigators in California are able to conduct familial DNA searches — using the CODIS loci to discover a new suspect — disproves the King majority's assumption that "the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee" and "alleles at the CODIS loci `are not at present revealing information beyond identification.' [Citation.]" (Id. at p. ___ [133 S.Ct. at p. 1979].) Familial searches also disprove the King majority's assumption that
But even accepting that the amount of personal information contained in the profile developed from noncoding portions of DNA is limited,
Moreover, as we will explain, the act places few restrictions on the law enforcement uses to which such information may be put. (See discussion, post, at pp. 1476-1478.) This raises questions both about the kind of personal and private information that may be derived from the DNA samples in the DOJ's possession, and the uses of that biometric data as scientific developments increase the type and amount of information that can be extracted from it. For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify
Further, as familial DNA searching demonstrates, DNA can be used to incriminate persons other than the suspect or offender from whom it is taken, while the information derived from fingerprints is limited to that one individual. In short, because the only information revealed by fingerprinting is a person's identity, and DNA analysis has the potential to reveal every aspect of the person's genetic makeup, fingerprinting presents no threat to privacy comparable to that posed by DNA analysis.
Like the four dissenting Justices in King, we are unwilling to accept the premises that analysis of arrestees' DNA is intended or in fact used for identification rather than investigation, or that "identification" encompasses investigating criminal history. The King majority's construction of a new governmental interest in "identity" that includes not only verification of who an arrestee is but also what that person has done in the past allowed the court to elevate the "governmental interest" side of the balance in weighing the law's promotion of "legitimate governmental interests" against its intrusion on arrestee's reasonable expectation of privacy. Because this definition of "identity" folds investigation into identity verification, and because DNA testing at the time of arrest does not further actual identity verification, the court's analysis distorted the "totality of the circumstances" required to be examined in measuring the reasonableness of the search at issue.
The premises that arrestees' DNA is used for identification and that identification includes criminal history permitted the King majority to view DNA testing of arrestees as falling within the established warrant exceptions for searches incident to arrest and booking. The result, as the dissenters explained, eviscerated protections against suspicionless searches long recognized under both the federal and state Constitutions. "The real expansion of warrantless search power in King is `its reimagination of the idea of "identity" to include criminal history and other information.'" (State v. Medina (2014) 2014 Vt. 69 [2014 Vt. Lexis 71, p. *42] (Medina) quoting DNA Testing, supra, 127 Harv. L.Rev. at p. 177.)
The King court relied upon the principle that "`[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.'" (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1971], quoting Michigan v. DeFillippo (1979) 443 U.S. 31, 35 [61 L.Ed.2d 343, 99 S.Ct. 2627].) And "[b]ecause proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the `governmental interests underlying a station-house search of the arrestee's person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest.'" (King, at p. ___ [133 S.Ct. at p. 1974], quoting Illinois v. Lafayette (1983) 462 U.S. 640, 645 [77 L.Ed.2d 65, 103 S.Ct. 2605].)
But, as Justice Scalia pointed out, the scope of a search incident to arrest is limited to weapons, easily destroyed evidence and evidence relevant to the
As Justice Scalia explained, it has been an established principle that warrantless searches without individualized suspicion may not be upheld where the "`primary purpose'" of the search was "`to detect evidence of ordinary criminal wrongdoing.'" (King, supra, 569 U.S. at p. ___ [133 S.Ct. at pp. 1981-1982] (dis. opn. of Scalia, J.), quoting Indianapolis v. Edmond, supra, 531 U.S. at p. 38.) Justice Scalia noted that the DNA search in King served the purpose of "`identifying' King" only if "what one means by `identifying' someone is `searching for evidence that he has committed crimes unrelated to the crime of arrest.' ... If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search." (King, at p. ___ [133 S.Ct. at pp. 1982-1983] (dis. opn. of Scalia, J.).)
By common understanding, "identification" means verifying who a person is. The Oxford English Dictionary defines the term as the "action or process of determining what a thing is" or who a person is. (7 Oxford English Dict. (2d ed. 1989) p. 619, col. 1.) In the context of fingerprinting, courts have drawn a distinction between identification — fingerprints taken "to verify that the person who is fingerprinted is really who he says he is," and investigation — fingerprints taken "to connect [the person fingerprinted] to a crime with which he was not already connected." (U.S. v. Garcia-Beltran (9th Cir. 2004) 389 F.3d 864, 867.) Fingerprints that are validly obtained for purposes of identification can later be used as evidence or in an investigation. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 865 [132 Cal.Rptr. 464, 553 P.2d 624].) Fingerprints obtained as a result of an illegal arrest are not subject to suppression if they were taken "solely to establish [the arrestee's] true identity." (Garcia-Beltran, at p. 866.) But suppression is required if fingerprints were taken as a result of an illegal arrest for an "`investigatory' purpose, i.e.[,] to connect [the arrestee] to alleged criminal activity ...." (Id. at p. 865; see Hayes v. Florida (1985) 470 U.S. 811 [84 L.Ed.2d 705, 105 S.Ct. 1643]; Davis v. Mississippi (1969) 394 U.S. 721 [22 L.Ed.2d 676, 89 S.Ct. 1394].)
Identification in the sense of identity verification was from the outset the purpose of fingerprinting arrestees. The police began using fingerprinting as part of the booking process in the early 1900's, as a reliable way to identify
The DNA collection and testing mandated by the DNA Act, however, does not serve this purpose, because DNA collected from an individual upon arrest cannot be used immediately to establish who that individual is. Before law enforcement can obtain information about an arrestee from DNA testing pursuant to the DNA Act, the DNA sample must be analyzed and a DNA profile created and run through a database. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].) The majority opinion in King noted the assertion in the amicus curiae brief of the State of California that "`DNA identification database samples have been processed in as few as two days in California, although around 30 days has been average' ...." (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1973].)
California's protocol for DNA collection and analysis confirms that DNA is not used to verify who a person is. Far from relieving law enforcement agencies of the need to take fingerprints, the act requires collection of a right thumb print and a full palm print of each hand, as well as a DNA sample. (§ 296, subd. (a)(2)(C).) Before collecting a DNA sample by means of the standard collection kit provided by the DOJ to local and state law enforcement agencies, the agency is required to "identify the subject" (FAQ, supra, Collection Mechanics, Ques. 1.1 <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014]), demonstrating that the immediate means of "identification" is not the subject's DNA.
Moreover, DNA samples are not taken from arrestees who have already had samples taken (FAQ, supra, Qualifying Offender Verification Criminal History Flags/Samples Taken; Rap Sheet "Flags" and Offender Verification <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014]), which shows that an arrestee's identity must be verified in some other fashion before a DNA sample can be collected. It also demonstrates that, as a practical matter, law enforcement agencies do not need or use the DNA taken at arrest for identification purposes.
That DNA testing is not needed to verify an arrestee's identity is unsurprising. Fingerprints can be and are used for this purpose; the only time DNA would be better suited or more accurate would be the very rare situation in which an arrestee has gone to the trouble of physically altering his or her fingerprints. In the words of the Vermont Supreme Court, "The current system of photographs and fingerprints fully responds to the need for identification of the defendant. In the many cases now consolidated in this appeal, the State has identified none in which there is a need for more accurate identification." (Medina, supra, 2014 Vt. Lexis 71 at p. *32.)
Not only are DNA profiles neither necessary nor helpful for verifying who a person is at the time of arrest, the fact that DNA testing cannot be used to immediately verify a person's true identity confirms that collection of a DNA sample at arrest has another purpose.
Although Proposition 69 twice declared the state's compelling interest in "accurate identification of criminal offenders," the findings section of the proposed law makes clear that its critical purpose was crime solving. (Voter Information Guide, supra, text of Prop. 69, p. 135.) The findings identified a "critical and urgent need" to furnish law enforcement "with the latest
Further, the text of the DNA Act does not restrict the investigatory uses to which DNA specimens, samples, and profiles may be put by law enforcement agencies. Despite the provision in the DNA Act that the DOJ "shall perform DNA analysis ... only for identification purposes" (§ 295.1, subd. (a)), other provisions authorize release of DNA samples and profiles collected under the Act "to law enforcement agencies," including "district attorneys' offices, and prosecuting city attorneys' offices" (§ 299.5, subd. (f)), and, "when, in the discretion of law enforcement, disclosure is necessary because the DNA information pertains to the basis for law enforcement's identification, arrest, investigation, prosecution, or exclusion of a particular person related to the case," DNA information may be released "to a jury or grand jury, or in a document filed with a court or administrative agency, or as part of a judicial or administrative proceeding," or may "become part of the public transcript or record of proceedings." (§ 299.5, subd. (k), italics added.) The DNA Act thus expressly authorizes the use of government stored DNA, including samples containing the entire human genome, not just to "identify" a person in the sense of verifying who he or she is, or to ascertain an accused person's innocence, but also to assist with the "arrest, investigation, prosecution, or exclusion" of a person. (§ 299.5, subd. (k).) And because the DNA Act authorizes retention of DNA samples as well as the profiles derived from them, those retained samples, can be used to criminally investigate persons whose DNA was obtained upon arrest many years earlier, even if they were never criminally charged or were acquitted.
Apparently, the only limitation imposed by the Act's references to "identification" is a prohibition against analysis and use of DNA for non-lawenforcement purposes relating to matters such as an individual's health, propensity for certain diseases or conduct, gender, or race. (See Kincade, supra, 379 F.3d at pp. 837-838; id. at p. 842, fn. 3 (conc. opn. of Gould, J.).) In other words, DNA is to be collected and analyzed for "identification" purposes in the sense that the only information that is supposed to be drawn from DNA samples is that which identifies the donor. But this identifying
Indeed, California is already using DNA information collected from convicted offenders for investigatory purposes completely unrelated to any definition of "identification" of the person from whom the DNA was taken. California was the first state to permit deliberate familial DNA searches, intentionally using DNA profiles to investigate the donor's close relatives as possible perpetrators.
California law enforcement agencies have engaged in such deliberate familial searching for many years, though so far only with DNA profiles of convicted offenders (FAQ, supra, <https://oag.ca.gov/bfs/prop69/faqs> [as of
As we have said, the scope of permissible searches of arrestees is one of the specific areas in which article I, section 13, has been held to provide greater protection than the Fourth Amendment. (Brisendine, supra, 13 Cal.3d 528; Ruggles, supra, 39 Cal.3d 1.) In Brisendine, which was concerned with a search incident to an arrest for a minor offense that would not involve the defendant being taken into custody (Brisendine, at p. 533), the circumstances of the case justified a search of the defendant's person and knapsack for weapons; at issue was a further search of closed containers within the
These cases particularly emphasized the need to protect against warrantless exploratory searches for evidence unrelated to the crime of arrest. In Brisendine, the court observed that an ostensible search for weapons that was "merely a facade designed to provide justification for an exploratory search
Respondent argues that Brisendine does not support any limitation on searches conducted when an arrestee is booked for a felony arrest, viewing the case as invoking the California Constitution only to enforce a statutory scheme that restricted the procedures police could employ after minor offenses for which an individual could avoid the booking process. It is true that Brisendine did not involve a felony arrest, but the point of the court's discussion of these restrictions was that whether and to what extent a search is justified depends upon the circumstances of the encounter. Classification based on whether the individual would be cited, transported to a magistrate, or booked into jail was "essential to analysis, since both the justification and the scope of a weapons search incident to an arrest are dependent on the relative danger to the officer presented by each type." (Brisendine, supra, 13 Cal.3d at p. 536.)
Respondent's reliance upon People v. Diaz (2011) 51 Cal.4th 84, 90-95 [119 Cal.Rptr.3d 105, 244 P.3d 501] is misplaced. Diaz, affirming the denial of a suppression motion, upheld a search of text messages on a cell phone found on defendant's person at the time of arrest on the basis of Robinson and other United States Supreme Court precedent concerning the extent of a permissible search incident to arrest. (Diaz, at pp. 90-95.) Because it presented a question concerning suppression of evidence, the case was required to be decided solely under the Fourth Amendment, in accordance with "the United States Supreme Court's binding precedent." (Diaz, at pp. 88, 101.) The Diaz court, therefore, had no basis for inquiring whether the substantive scope of a permissible search should be viewed differently under the California Constitution — as the court did when it rejected Robinson in Brisendine. And even as to the suppression issue, Diaz has now been effectively overruled by the United States Supreme Court's conclusion that the search incident to arrest exception to the warrant requirement does not
Contrary to respondent's assertion, the California Supreme Court has never held that in the area of search and seizure, the rights guaranteed by the state and federal Constitutions are necessarily "coextensive." As respondent points out, the court has held that "[t]he touchstone for all issues under the Fourth Amendment and article I, section 13 of the California Constitution is reasonableness" (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329 [241 Cal.Rptr. 42, 743 P.2d 1299]) and that the federal and state Constitutions "extend similar protection against `unreasonable searches and seizures.'" (Lance W., supra, 37 Cal.3d at p. 881.) But the fact that both provisions are analyzed through the prism of similar factors does not mandate the same outcome in all cases — as Brisendine and the other cases discussed above make clear. And, as we have said, Lance W. itself noted that the substantive scope of article I, section 13 of the California Constitution was not affected by Proposition 8's requirement that California courts admit evidence that would not be excluded under the Fourth Amendment. (Lance W., at p. 886.)
People v. Crowson (1983) 33 Cal.3d 623, 629 [190 Cal.Rptr. 165, 660 P.2d 389] (Crowson), overruled on other grounds in People v. Myers (1993) 5 Cal.4th 1193, 1195 [22 Cal.Rptr.2d 911, 858 P.2d 301], is not to the contrary. In that case, the police had secretly recorded a conversation between the
Crowson engaged in no analysis of the substance of the state and federal search and seizure provisions as compared to each other; it simply compared those two provisions, on the one hand, with the state privacy provision, on the other. Its observation that the privacy provision does not afford greater protection in the search and seizure context than would the search and seizure provisions themselves says nothing about the respective reach of either search or seizure provision in a given situation. The same is true of the two cases respondent offers as having cited Crowson with approval, Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 [89 Cal.Rptr.3d 594, 201 P.3d 472] and Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633] (Hill). Both Sheehan and Hill were civil cases in which the plaintiffs claimed violations of their constitutional right to privacy. Both noted the comparison of the two search and seizure provisions with the privacy provision; neither compared the federal and state search and seizure provisions with each other.
Indeed, it would be surprising to find California cases decided after Proposition 8 discussing differences in the substantive scope of the state and federal search and seizure provisions, as it is highly unusual for search and seizure issues to arise in any context other than a suppression motion, which Proposition 8 requires to be decided according to federal law. The unavailability of the exclusionary rule as a remedy for violations of the state Constitution that are not violations of the Fourth Amendment means that state courts considering suppression of evidence must engage in a Fourth Amendment analysis. (People v. Maikhio (2011) 51 Cal.4th 1074, 1089 [126 Cal.Rptr.3d 74, 253 P.3d 247].) But the argument respondent draws from this fact — that although the substantive scope of article I, section 13 of the California Constitution, was unaffected by Proposition 8, arrestees' rights are nevertheless "limited in a practical sense" by the absence of the exclusionary rule as a remedy — is too facile. The present case has nothing to do with the
California's DNA Act intrudes too quickly and too deeply into the privacy interests of arrestees.
As we will explain, the fact that DNA is collected and analyzed immediately after arrest means that some of the arrestees subjected to collection will never be charged, much less convicted, of any crime — and, therefore, that the governmental interest in DNA collection is inapplicable while the privacy interest is effectively that of an ordinary citizen. The absence of automatic expungement procedures increases the privacy intrusion because DNA profiles and samples are likely to remain available to the government for some period of time after the justification for their collection has disappeared, potentially indefinitely. And the fact that familial DNA searches are not prohibited means that the act would permit intrusion into the privacy interests of arrestees' biological relatives if the DOJ were to alter its current policy of not using arrestees' DNA for such searches.
Because the constitutionality of collecting DNA from convicted offenders has been accepted, the governmental interest at stake in King was not in obtaining DNA at all but in obtaining DNA sooner than if it had to wait for conviction. The Vermont Supreme Court questioned the significance of this interest: As to the difference between obtaining DNA after arraignment and waiting for conviction, the court stated, "the State has not shown why quicker access to the DNA is a weighty interest, and we cannot find it to be so." (Medina, supra, 2014 Vt. Lexis 71 at p. *49.)
Justice Scalia pointed out in his King dissent that the majority's decision had an "ironic result": "The only arrestees to whom the outcome here will
In California, the burdened group includes not only those ultimately acquitted of criminal conduct but also those never even charged. The percentage of arrestees potentially affected in the latter way is not small: Statistics published by the DOJ indicate that in 2012 (the most recent year for which these numbers are available), 62 percent of felony arrestees who were not ultimately convicted — almost 20 percent of total felony arrestees — were never even charged with a crime.
In the present case, respondent's only articulation of its interest in immediate DNA testing — as opposed to testing after a judicial determination of
Moreover, permitting DNA to be collected immediately after arrest effectively leaves the determination of who will be subjected to DNA testing entirely in the hands of arresting officers. In many situations, the conduct for which an individual is arrested might be viewed as fitting the definition of a number of different crimes; whether the offending behavior is charged as a misdemeanor or a felony is initially left to the judgment of the arresting officers, leaving room for variation between both jurisdictions and between individual officers. (See DNA Testing, supra, 127 Harv. L.Rev. at pp. 188-189.) As the Supreme Court has explained with respect to the federal Constitution, "`The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.'" (Gerstein v. Pugh (1975) 420 U.S. 103, 112-113 [43 L.Ed.2d 54, 95 S.Ct. 854], quoting Johnson v. United States (1948) 333 U.S. 10, 13-14 [92 L.Ed. 436, 68 S.Ct. 367].)
Further, aside from the undue discretion afforded to law enforcement officers to determine whether an arrestee will be subject to DNA testing, this aspect of the DNA Act opens an opportunity for actual abuse. Without questioning the integrity of most law enforcement officers, it is not difficult to think that the DNA Act might provide an incentive to pretextually arrest a person from whom the police desire a DNA sample, as the act would permit officers to collect the DNA and then release the uncharged arrestee, thereby obviating the need for any judicial inquiry into probable cause. (See Laiwa, supra, 34 Cal.3d at pp. 727-729 [accelerated booking search would give police license to conduct booking search on arrest for minor offense in hope of discovering evidence of more serious crime]; Brisendine, supra, 13 Cal.3d at p. 534 [ostensible weapons search as facade to justify exploratory search for narcotics would be illegal].)
The fact that the DNA Act does not provide for automatic expungement increases the weight of the arrestee's privacy interest. California places the burden on the arrestee to pursue an onerous judicial process which seemingly vests the prosecutor with power to prevent expungement merely by objecting to the request (§ 299, subd. (c)(2)(D)), gives the trial court discretion to deny expungement without specifying any parameters for the exercise of that discretion, and renders the trial order unreviewable by appeal or writ. The
In addition, due to California's policy of familial searching, the California DNA Act intrudes upon the privacy of individuals who have not themselves come into any contact with law enforcement. This intrusion is worthy of
Aside from their targeting of individuals who have done nothing to bring themselves into contact with the criminal justice system,
Article I, section 1, of the California Constitution provides, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." The words "and privacy" were added to this provision by an initiative adopted in 1972 (the Privacy Initiative). (Hill, supra, 7 Cal.4th at p. 15.) The United States Constitution contains no comparable express protection of privacy rights.
It follows from these principles that the express protection for the right to privacy enshrined in the California Constitution cannot be ignored in considering what California society would consider a legitimate expectation of privacy. The values reflected in the state constitutional right to privacy necessarily inform and illuminate the scope of this aspect of a claim under article I, section 13 — the reasonable expectation of privacy of a California arrestee.
"A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms
As we have seen, DNA samples contain an enormous amount of personal information — the entire human genome. DNA testing is neither necessary nor practical for the only noninvestigative purpose advanced to justify it — verifying the identity of arrestees. Moreover, DNA ostensibly gathered for the purpose of identification is misused to serve another purpose, criminal investigation. Considering also that the DNA Act permits the indefinite retention of this material — even that of arrestees who are never charged or never convicted of any offense — the collection and indefinite storage of DNA samples is the epitome of the kind of stockpiling of personal and private information the Privacy Initiative meant to protect from unnecessary governmental intrusion. While King paid little if any attention to the length of time a DNA sample could be retained and the extent of the uses to which it could be put, including risks of unauthorized leaks or research, as well as human error in the processing and analyzing of DNA (DNA Testing, supra, 127 Harv. L.Rev. at pp. 192, 195), such concerns cannot be ignored under article I, section 13 of the California Constitution, as informed by the values reflected in article I, section 1, of our state Constitution — especially when informational privacy, the "core value" the Privacy Initiative was intended to protect, is at stake.
The DNA Act attempts to address privacy concerns in two ways: First, by providing for expungement of DNA profiles from the database and destruction of DNA samples when the basis for including them has been proven unwarranted, and, second, by insisting upon confidentiality of "[a]ll DNA and forensic identification profiles and other identification information retained by the [DOJ] pursuant to this chapter" except as provided under the act (§ 299.5, subd. (a)) and providing for criminal fines and terms of imprisonment for knowing use, or disclosure to an unauthorized individual or agency, of a DNA sample or profile "for other than criminal identification or exclusion purposes" or "identification of missing persons" (§ 299.5, subd. (i)(1)(A)).
These provisions, of course, do little to protect the privacy interests implicated by the investigatory use of DNA information, as described above. It is questionable how much protection they afford against other misuse of the information. As we have already described, the expungement procedures in the DNA Act put the burden of seeking expungement upon the arrestee, the process is onerous, and the DNA Act appears to allow the prosecutor — whose
As for the enforcement provisions, although the DNA Act criminalizes misuse of DNA information, it is difficult to imagine these provisions being enforced in any but the most exceptional cases. There is no civil remedy for misuse of DNA information (§ 299.5, subd. (i)(2)(B)); the DNA Act requires the government, whose interest is in collecting, analyzing, retaining and using DNA samples, to police itself. Most arrestees will never know if their DNA information has been misused, and even if they do, few are likely to be aware of the existence of criminal penalties and in a position to pursue them. And if an arrestee were able to get this far, the likelihood of a prosecutor pursuing criminal charges in the average case is not great, given the governmental interest in crime solving.
In light of the concerns underlying the Privacy Initiative, the nature and extent of personal information contained in DNA samples, and the likely indefinite retention of such samples for many individuals who are never found to have committed a crime, the privacy interest at stake in this case is extremely weighty.
The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to "shrink the realm of guaranteed privacy." (Kyllo v. United States (2001) 533 U.S. 27, 34 [150 L.Ed.2d 94, 121 S.Ct. 2038].) The information contained in a DNA profile — and even more so that in a DNA sample — is deeply personal; "[o]ne can think of few subject areas more personal and
The judgment is reversed.
Richman, J., and Brick, J.,
DNA databanks are growing rapidly. As of October 2014, NDIS contained over 11,219,527 offender profiles, 2,065,806 arrestee profiles and 590,079 forensic profiles. (CODIS-NDIS Statistics (Statistics) <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-statistics> [as of Dec. 3, 2014].) The FBI states that "[t]hrough the combination of increased Federal funding and expanded database laws, the number of profiles in NDIS continues to increase dramatically." (Brochure, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure>.) As of October 2014, CODIS had produced over 263,847 "hits" (identifying a potential suspect or linking multiple crime scenes), assisting in more than 252,272 investigations nationwide. (Statistics, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-statistics> [as of Dec. 3, 2014]; Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].) As of September 30, 2014, the California DNA Data Bank Program (CAL-DNA) contained 2,327,610 DNA samples received and logged, and 2,327,610 subject profiles uploaded pursuant to section 296. (California Department of Justice Proposition 69 DNA Data Bank Program Report for Third Quarter 2014 <http://oag.ca.gov/sites/all/files/agweb/pdfs/bfs/quarterlyrpt_3q_2014.pdf?> [as of Dec. 3, 2014].) As of that date, the California DOJ reported 36,031 total hits, and 40,813 investigations aided. (Ibid.)
An individual may initiate expedited expungement proceedings by filing a request form and "sufficient documentation of his/her identity, legal status, and criminal history" with the DOJ DNA Database Program. (<http://ag.ca.gov/bfs/pdf/ expungement_app_instruc.pdf> [as of Dec. 3, 2014].) Depending on the grounds for expungement, the required documentation may be a letter in support of expungement from a district attorney or prosecutor, or a certified or file-stamped copy of a court order, opinion, docket, or minute order. (Streamlined DNA Expungement Application Form 244 <http://ag.ca.gov/bfs/pdf/expungement_app.pdf> [as of Dec. 3, 2014].) If DOJ denies the request, the individual may initiate a court proceeding pursuant to the section 299 procedures. (<http://ag.ca.gov/bfs/pdf/expungement_app_instruc.pdf> [as of Dec. 3, 2014].)
The DOJ posts monthly statistics for the DNA Laboratory which indicate the number of samples removed from the backlog. As the number of samples removed includes "any samples Expunged, Removed or Failed twice, as well as where a New Sample has been requested," it does not reveal how many samples were expunged or how many profiles eligible for expungement exist in the databank. (Jan Bashinski DNA Laboratory Monthly Statistics <http://ag.ca.gov/sites/all/files/agweb/pdfs/bfs/monthly_october_2014.pdf?> [as of Dec. 3, 2014].)
Haskell v. Harris, supra, 745 F.3d 1269 does not compel us to reach any particular resolution of the present case. First, Haskell did not adjudicate the constitutionality of the DNA Act; it only held that plaintiffs were not entitled to a preliminary injunction. Second, even with respect to a Fourth Amendment analysis, decisions of the Ninth Circuit are persuasive authority but not binding upon California state courts. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352 [276 Cal.Rptr. 326, 801 P.2d 1077] (Raven).)
Respondent contests appellant's right to pursue a claim under the California Constitution because it was not "developed" at trial or by his appointed counsel on appeal. Respondent urges that appellant's briefing initially "raised, but did not develop a state constitutional law claim," that respondent pointed out this failure to develop a state law claim and argued such a claim would not be decided differently from a Fourth Amendment claim, that appellant's appointed amicus curiae then raised a state law claim, and that appellant's "substantial" state law claim was made for the first time only after the case was remanded by the Supreme Court. This attempt to avoid the merits is surprising considering the procedural history of the appeal. This court, of its own initiative, invited the First District Appellate Project (FDAP) to file an amicus curiae brief on the initial appeal in order to have the issues more fully developed. FDAP'S brief addressed the California Constitution, as well as the Fourth Amendment, albeit focusing on article I, section 1 of the California Constitution. After FDAP's amicus curiae brief was filed, FDAP was substituted as appellant's counsel. Although we chose to resolve the case on federal constitutional grounds at that time, there is no basis for respondent's attempt to prevent consideration of the issues under the California Constitution now. In any event, even if appellant had not earlier relied upon article I, section 13, we would not "ignore a constitutional provision directly applicable to an issue in a case before us simply because a party had neglected to cite it." (People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3 [143 Cal.Rptr.3d 674, 279 P.3d 1143].)
The court's approach in King could not have been more different. The King court avoided any acknowledgement of the personal nature of DNA information, limited its consideration of privacy interests to the specific search involved, overlooked scientific developments in DNA analysis expanding its investigative use to persons who are neither offenders nor even arrestees, disregarded potential scientific developments increasing the information extracted from DNA, and then broadly extended its decision to DNA laws even more intrusive than the one before the court.
California uses the California Identification System (Cal-ID), the automated system maintained by the DOJ for retaining fingerprint files and identifying latent fingerprints. (§ 11112.1.) At the local level, live scan devices are used to capture fingerprints taken when an individual is booked and transmit them electronically to the DOJ, which then transmits them to the federal database. (See Orange County Crime Lab <http://www.occl.ocgov.com/Sections/CalID.aspx> [as of Dec. 3, 2014].)
For a fortuitous partial discovery, the Bulletin states that "[w]hen a partial match occurs that has at least 15 shared STR alleles with an offender, DOJ will contact the local laboratory's CODIS administrator to confirm that the case is not yet solved. If the case is still active, the case investigator should be notified of the partial match by the local CODIS laboratory and the process defined in the policy will be followed upon request." (Bulletin, supra, at p. 2, italics added.)
The Bulletin provides that "any costs associated with the special DNA testing of the crime scene evidence must be paid for by the investigative agency, unless the crime scene evidence testing was performed by DOJ." (Bulletin, supra, at p. 3, italics added.)
This conclusion may be an overstatement. Analyses of DNA profiling and databases, including California's, indicate that "`hits' and `investigations aided' metrics are poor indicators of whether DNA databases aided in resolving criminal investigations" because this data does not reveal whether hits resulted in arrests or convictions. (James, Congressional Research Service, DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues (Feb. 25, 2014) at p. 6; see RAND Corporation, Center on Quality Policing, Toward a Comparison of DNA Profiling and Databases in the United States and England (2010) (RAND study) at pp. 17, 20.) Further, "[d]atabase matches are more strongly related to the number of crime-scene samples than the number of offender profiles in the database" (RAND study at p. 20), and it has been suggested that, given the constraints of financial resources, the focus on increasing the database of offender profiles comes "at the cost of greater backlogs and fewer technicians for crime scene sample collection and analysis." (DNA Testing, supra, 127 Harv. L.Rev. at p. 183.) It has also been suggested that the impact of collecting DNA from arrestees may be small because many have previously been convicted, so already have profiles in the database, and many of the others will have profiles added upon conviction. (Kaye, The Constitutionality of DNA Sampling on Arrest (2001) 10 Cornell J.L. & Pub. Pol'y 455, 502.)
Section 825, subdivision (a)(1), requires that an arrestee "be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays."
Respondent also relies upon the statement in In re York (1995) 9 Cal.4th 1133 [40 Cal.Rptr.2d 308, 892 P.2d 804], that the "`presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; ... it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.'" (Id. at p. 1148, quoting Bell v. Wolfish, supra, 441 U.S. at p. 533.) The salient point in York was that a lawful arrest allows restrictions on the liberty to which a citizen is ordinarily entitled. But the mere fact of an arrest does not render it lawful, a judgment that can be made only after a judicial determination of probable cause. At the time appellant was asked for and refused to provide a DNA sample, no judicial officer had determined whether there was probable cause to believe he had committed a crime.
Federal law requires each state, "[a]s a condition of access to the [DNA] index," to "promptly expunge from that index the DNA analysis of a person included in the index by that State if ... [¶] ... the responsible agency or official of that State receives" the above described documentation that the relevant conviction has been overturned, or the charge has been dismissed, resulted in acquittal, or was not filed within the applicable time period. (42 U.S.C. § 14132(d)(2)(A).) While California is required to adhere to the federal standards in order to maintain access to CODIS (42 U.S.C. § 14132(d)(2)(A)), it is unclear whether and how this requirement is enforced.
Respondent points out that the category of arrestees who were not convicted may include some who did in fact commit a crime. One example is an arrestee whose offenses result in revocation of probation rather than a new criminal prosecution; in 2012, 47,670 adults had probation revoked for a felony offense. (Crime in California 2012, supra, at p. 55.) Many of these arrestees, however, would have been subject to DNA testing when they were originally convicted. Arrestees whose cases are not pursued by the prosecutor for reasons such as inadmissible evidence or witnesses declining to testify, as respondent suggests, may in fact have committed crimes, but they are legally innocent.
We raise these issues only to show that serious students of DNA sampling — virtually all of whom acknowledge that the chief purpose of the practice is criminal investigation, not identification — recognize the significant dangers it presents and the need to address them more forthrightly and efficaciously than does the DNA Act.
