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.
Today, the United States Supreme Court ruled unanimously that law enforcement may not search a cellphone absent a warrant or exigent circumstances. The vast majority of law enforcement searches occur incident to arrest and without a warrant. Traditionally, these searches were justified as constitutional by the courts as a way to ensure officer safety and to prevent the destruction of evidence. Neither of these issues was found sufficient in the case of cellphones to avoid the requirement of obtaining a warrant. Indeed, the Supreme Court observed that in today’s high tech world, law enforcement can obtain a warrant in as short as fifteen minutes if the circumstances warrant it. Moreover, in extreme cases, where a cellphone is believed to be used in connection with an imminent bombing or where the cellphone may reveal the location of an abducted child, the court’s existing “exigent circumstances” exception to the Fourth Amendment can be used to justify a warrantless search. The Court today did not forbid law enforcement from searching cellphones. It just reinforced the existing Fourth Amendment requirement of a warrant for this type of search.
What rights does a photographer have to take a photo and what limits may law enforcement or the courts impose on those rights? The courts in California have not clearly defined these rights. However, some guidance can be obtained from how parties have litigated these claims. Consider the following three scenarios:
An artist stands on his property and takes a photograph through your uncovered window of your family for use in an art exhibition;
A photojournalist snaps photos at a subway station arousing the suspicions of law enforcement; and
A civil rights group wants to record video and audio of police officers making arrests in public.
These situations involve the intersection of privacy rights, First Amendment rights and, sometimes, national security concerns. Generally, the law favors a photographer’s First Amendment rights over a person’s right to privacy.
Foster v. Svenson, New York Supreme Court
Tribeca artist Arne Svenson surreptitiously took photographs of his neighbors using a telephoto lens to see into his neighbors’ homes. The photographed subjects included children.
A computer hard drive containing private medical information for 16,000 patients at UCLA was stolen. One of the patients filed a class action lawsuit seeking $1,000 per patient ($16 million total) in statutory damages against the UC Regents. Although the plaintiff pled that the UC system negligent stored the patient data the plaintiff did not plead that any third party had actually viewed the confidential data. The question posed to the trial court and again on appeal was whether a claim for statutory damages could proceed absent pleading and proof of actual disclosure. The trial court ruled for the plaintiff and overruled the UC Regents’ demurrer.
The Court of Appeal reversed and granted a writ petition by the UC Regents today. In an opinion authored by Presiding Justice Dennis Perluss Division Seven of the Second District Court of Appeal, ruled that an action for statutory damages under California’s Confidentiality of Medical Information Act requires proof of actual disclosure of the data to a third party. Mere negligent storage of the information alone is insufficient. You can read the decision in Regents of University of California v. Superior Court (Platter) (Oct. 15, 2013 B249148) here.
Given that the thief in this case and similar cases is not likely ever to admit to viewing the data, it is difficult to imagine a scenario where stolen data will result in statutory damages in the future unless the thief is caught and confesses.
Today Justice James A. Richman of the First Appellate District authored an opinion affirming the use by law enforcement of GPS locating services obtained from a stolen cell phone to locate the cell phone thief. In People v. Barnes, a victim of a cell phone robbery reported the crime to the police. The cell phone provider, with the victim’s consent, provided GPS location data to law enforcement. Using that data, officers detained a suspect. The suspect was later identified by the victim as was her property. In the ensuing trial and appeal, the defendant challenged the legitimacy of the stop. The Court of Appeal found the argument lacked merit:
[D]id defendant have a legitimate expectation of privacy in the cell phone he had stolen. The answer is an emphatic “no.” As stated most baldly by the Ninth Circuit: “The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole because regardless of whether he expects to maintain privacy in the contents of stolen property, such an expectation of privacy is not one that society is prepared to accept as reasonable.” (United States v. Caymen (9th Cir. 2005) 404 F.3d 1196, 1200).
You can read the opinion in People v. Barnes, A135131 here.
When parties settle a case and the settlement contains a confidentiality agreement, a subsequent lawsuit for breach of that confidentiality agreement does not come within the purview of California’s anti-SLAPP statute. In an unpublished opinion on June 6, the California Court of Appeal, Second District, the Court considered lawsuits and confidential settlements stemming from comments about gay marriage by former Miss California Carrie Prejean. Prejean came under intense media scrutiny following those comments and she filed a lawsuit. The parties participated in a mediation where reportedly Prejean was shown compromising video and photographs of herself. That lawsuit settled pursuant to a written settlement agreement including a confidentiality provision binding Prejean, her attorney Charles S. LiMandri and the other attorneys involved in the case. All of the parties to the settlement, agreed to keep the existence of the Carrie Prejean video and photos confidential.
The day after the settlement, TMZ reported the details of the settlement and the existence of the video. In the ensuing lawsuit and appeals, the Court of Appeal was called on to decide whether California’s anti-SLAPP law protects statements made following the settlement. The Court held:
The anti-SLAPP statute affords no protection to the defendant who breaches a contract limiting his right to speak publicly on matters of public interest.
The Metropolitan News-Enterprise reports more here. You can read the opinion in LiMandri v. Wildman, Harrold, Allen & Dixon, LLP, B234460 for a limited time here: here.