In November 2004, California enacted a law requiring that anyone arrested for a felony have their DNA collected. This amounted to a significant expansion of the prior law that allowed for collection of DNA after conviction. The courts have historically approved of DNA laws that require collection from a defendant convicted of a crime. The United States Supreme Court has also held that a warrantless collection of DNA for purposes of confirming an arrested defendant’s identity does not violate the Fourth Amendment. (Maryland v. King (2013) ___ U.S. ___ [133 S.Ct. 1958]). The Supreme Court held that the procedure in Maryland was no different than a booking photograph or fingerprinting.
On Wednesday, the First District Court of Appeal in California issued its opinion in People v. Buza (Dec. 3, 2014 A125542A). In Buza, the Court of Appeal held that in the case of DNA collection of arrestees, the California Constitution provides more privacy protection for criminal defendants than the Fourth Amendment does. The Buza court also noted that the Maryland DNA collection law only authorized DNA collection after a defendant was charged with a crime while California’s law required immediate DNA collection upon arrest.
we conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under article I, section 13, of the Constitution.
This decision will likely not be the final word on the subject. Other districts in California may come to different conclusions and ultimately the California Supreme Court may weigh in on this issue. However, for now, the warrantless “collect on arrest” DNA collection from a criminal defendant is no longer constitutional in California.