Appeals court upholds DNA testing of felony suspects

Law enforcement officers may take a DNA sample from anyone arrested on a felony charge without running afoul of the suspect’s right to be free from unreasonable search and seizure, a divided federal appeals court ruled Thursday.

The challenge brought by a group of Californians arrested for alleged felonies but never convicted upheld a 2004 amendment to the state’s laws governing DNA collection and use.

In a 2-1 ruling, a panel of the U.S. 9th Circuit Court of Appeals compared taking an oral swab from a suspect with fingerprinting arrestees, a decades-old booking practice consistently upheld by the courts as a legitimate identification aid.

“We assess the constitutionality of the 2004 amendment by considering the ‘totality of the circumstances,’ balancing the arrestees’ privacy interests against the government’s need for the DNA samples,” said the opinion written by Judge Milan D. Smith Jr.


“DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects,” wrote Smith, who was named to the court by President George W. Bush, in an opinion joined by a visiting Tennessee judge appointed by President Reagan. “After weighing these factors, we conclude that the government’s compelling interests far outweigh arrestees’ privacy concerns.”

The sole Democratic appointee on the panel, Judge William A. Fletcher, dissented, calling the law authorizing DNA sampling for investigative purposes contrary to Supreme Court and 9th Circuit precedent.

Fletcher, an appointee of President Clinton, noted that three of the four lead plaintiffs in the class-action lawsuit had been arrested during demonstrations in the Bay Area in 2009, including a UC Berkeley student protesting tuition hikes and faculty layoffs.

Elizabeth Haskell, another of the plaintiffs represented by the American Civil Liberties Union of Northern California, was arrested during a peace demonstration in San Francisco three years ago. No charges were filed, but she was threatened with prosecution unless she submitted to the DNA collection. She told the court she considered the swabbing “an intimidation tactic” aimed at stifling her free speech rights.


Michael T. Risher, the ACLU lawyer who argued the case, said a petition for rehearing by the full 9th Circuit was likely and that he expected the judges to be inclined to reconsider the split panel ruling.

“This is clearly an issue where different reasonable judges have differing opinions, and we’ll have to see how it ends up,” Risher said.

About 300,000 people are arrested for alleged felonies each year in California, and a third are never convicted, Fletcher wrote. Many, including two of the plaintiffs, are never even charged, he added.

Once an arrestee’s DNA sample is taken by swabbing the inside of the mouth, it is analyzed to produce a genetic profile of the individual and submitted to the Combined DNA Index System, known as CODIS, and available to law enforcement from all 50 states and the federal government. Genetic evidence from unsolved crime scenes also resides in the database and is scanned weekly for matches with arrestee profiles.