Friday, August 12, 2011

If the Involuntary Collection of DNA from Arrestees is Unconstitutional, How Can Fingerprinting Them be Legal?

N.S. The ramifications of the California First District Court of Appeal's decision (see below) are huge. If it stands up under appeal to the California Supreme Court, not only would the state (and potentially the country, if other state and, ultimately, federal courts agree) have to destroy most, if not all, of its DNA database, but many felony (including rape and murder) charges, and even convictions would have to be thrown out.

But that’s only the beginning. Prior to the advent of DNA testing, finger printing was the greatest forensic tool ever invented. But as far as I can see, the analogy between taking involuntary DNA samples from arrestees and taking involuntary fingerprints from them is as strong as can be. Hundreds of thousands of convictions across the country were made possible only by the involuntary fingerprinting of a criminal suspect following a previous arrest for which he was not convicted, or his initial finger printing in the instant case in which, using the same standard which the First District is applying to involuntary DNA testing, would render the initial finger printing illegal, and the case thereby unwinnable.

Collecting DNA from Arrestees Is Unconstitutional, First District Rules
By Kate Moser
The Recorder
August 04, 2011


Justice Anthony Kline, First District Court of Appeal
Image: Jason Doiy/The Recorder


SAN FRANCISCO — A California law that mandates DNA samples be taken from felony arrestees is unconstitutional, a state appeal court ruled Thursday.

"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 diminish the privacy guaranteed by the Fourth Amendment," wrote First District Justice J. Anthony Kline.

California voters amended the state's DNA Act in 2004. Among other things, the change required law enforcement officials — starting in January 2009 — to take DNA samples from any adult arrested for or charged with any felony.

In Thursday's decision, Kline, along with Justices James Lambden and James Richman, sided with convicted arsonist Mark Buza, who argued that the mandatory cheek swab violated his Fourth Amendment right to be free from unreasonable searches and seizures.

The panel saw a red flag in seizing the DNA at a time when the defendant was presumed innocent. And Kline rejected a comparison to fingerprinting arrestees, saying that historically that was done for identification purposes and not to solve crimes. Courts haven't as rigorously tested the constitutionality of fingerprinting, so conflating it with DNA sampling is problematic, he wrote.

The court disputed the usefulness of the state's growing DNA library in solving crimes. "But even if DNA testing of arrestees was demonstrably valuable to law enforcement, the effectiveness of a crime-fighting technology does not render it constitutional," Kline wrote in the 44-page opinion.

"We are reviewing the court's opinion and will determine the appropriate course of action," Shum Preston, a spokesman for the attorney general's office, said in a statement.

The DNA question is a hot one — in September, the Ninth Circuit U.S. Court of Appeals is set to rehear a case involving DNA collection as a condition of pretrial release.

"We're very hopeful that the state Supreme Court will take this case and take it soon, because there are lives at stake," said Jayann Sepich, founder of DNA Saves, a group that advocates for DNA testing laws.

"We feel confident that the state Supreme Court will uphold arrestee testing," added Sepich, who became an advocate for testing laws after her daughter was raped and murdered in New Mexico in 2003.

The case is People v. Buza, A125542.


Anonymous said...

You can tell someone's race by their DNA, which you can't from fingerprints. For example, if a woman is raped and murdered, and there is DNA, the race of the killer can be determined.

Not only can race be determined by DNA, but whether the individual is a man or woman. This is the supposed "invasion of privacy."

Derrick Todd Lee, the Baton Rouge Serial Killer, was identified through DNA. The local authorities had been looking for "a white guy in a pickup truck," but the DNA showed the killer was actually black.

Another example is the 1975 Marcia Trimble murder, the most famous cold case in Tennessee history. She was a 9-year old girl scout murdered while selling cookies in her upscale Nashville neighborhood.

For decades, the Nashville police and the FBI were certain the killer was white. In 2007, DNA revealed the killer was Jerome Barrett, a black ex-con who was also convicted of still another rape-murder in the same area. Barrett was linked to the other murder by DNA also.

This is why some people oppose DNA databases. They complain that too many nonwhites, blacks especially, are in them.

David In TN

Anonymous said...

Off topic but:

Pakistanis and Indians Jailed for Starting Birmingham Riots

John Derbyshire estimates that blacks comprise about 2% of the British population but 60 - 70% of the rioters.