The California Supreme Court ruled Monday that authorities are legally entitled to collect DNA from suspected felons when they are booked into local lockups, overturning a lower court ruling that questioned the constitutionality of the practice.

In its 4-3 ruling, the state’s high court cited a U.S. Supreme Court decision that found collecting DNA is a legitimate police booking procedure comparable to fingerprinting or taking a suspect’s photograph.

The court’s majority wrote that they have a duty to uphold the will of the state’s voters, who approved the collection of DNA for arrestees, unless it is clearly unconstitutional. They also noted that people who are arrested can expunge the DNA samples from law enforcement databases if they aren’t convicted.

DNA collection consisting of a quick swab inside the cheek has long been a routine part of the booking process at local jails across California. The DNA is fed into national databases, helping to confirm the identity of those arrested and occasionally identifying suspects in ongoing criminal investigations.

The policy dates back to a 2004 proposition in which voters approved the expansion of “DNA sampling” to anyone arrested for any felony offense. The arrestees can apply to have the DNA data expunged from law enforcement databases if they aren’t charged with a criminal offense, if charges are dropped or if they are found not guilty.

The state Supreme Court’s opinion noted that all 50 states require the collection of DNA from those convicted of felony crimes, while the majority of states require it at the time of the arrests.

In challenging the practice, civil liberties groups questioned why DNA should be taken from those haven’t yet had their day in court, contending that the value of such evidence to law enforcement shouldn’t override the expectation of privacy for those who haven’t been proved to have broken the law.

A panel of California Court of Appeals judges in a 2014 ruling shared the concerns of the civil liberties groups, questioning the “steady expansion” of DNA testing in the criminal justice system from only offenders convicted of specified serious crimes of violence to all felons and now to those arrested for felonies.

The state appeals court ruling temporarily halted the collection of DNA from suspects arrested for felonies at many local jails. Other jails still collected the DNA, but held off on entering the genetic material into a DNA database.

The California Supreme Court’s decision in 2015 to take up the DNA collection debate allowed local law enforcement agencies to once again begin collecting DNA from arrestees and put it into the database.

Local law enforcement officials in Los Angeles, Riverside and Orange counties were among those who were pleased with Monday’s ruling.

“The collection of this DNA, done through a minimally invasive cheek swab during booking in Orange County Jail, has aided the Sheriff’s Department in investigations by providing evidence that may lead to potential conviction for past crimes, similar to the use of fingerprints or photographs,” said Carrie Braun, a spokeswoman for the Orange County Sheriff’s Department. “It’s important to note that these samples are indexed separately from convicted samples, and that there is a process for individuals who are exonerated to have their sample removed from the system.”

Prosecutors also noted that the collection of DNA during felony arrests has also led to the exoneration of individuals wrongly convicted of a crime when a different suspect is identified.

The collection of DNA is a massive endeavor, both on the national and statewide scale. The state’s DNA bank is connected to a nationwide index run by the FBI that includes more than 11 million offender profiles and 20 million arrestee profiles. With the evolution of DNA testing, hits in the databases can revitalize long cold criminal investigations.

A pair of dissenting opinions issued by the three state Supreme Court justices contended that regardless of the U.S. Supreme Court’s decision, the local policies are a violation of California state law.

Justice Goodwin H. Liu noted that, according to California Department of Justice data, one in five felony arrests from 2009 to 2016 did not result in prosecution, while one in three did not result in a conviction.

Liu also argued that the process for expunging one’s DNA information from databases is “not adequate to allay constitutional concerns.” He noted that the arrestee is required to collect “extensive” documentation, to contact multiple parties and to attend a court hearing in which the request could be denied, a decision that is not subject to appeal.

The case stemmed from the arrest of Mark Buza, who refused to provide a DNA sample to authorities after he was arrested on suspicion of setting a police car on fire in San Francisco.

The ACLU, which represented Buza, did not immediately respond Monday to requests for comment.

This article originally appeared on the Orange County Register.

Sean Emery

The Orange County Register

Sean Emery is a crime and public safety reporter for the Register who covers state and federal courts and criminal justice issues. He has worked for the Register since 2006, previously covering breaking news, the city of Irvine, the Orange County Great Park, and the city of San Juan Capistrano.


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