Appeals court upholds California law requiring arrestees to give DNA sample

Last month, the Ninth Circuit Court of Appeals upheld a California law requiring individuals arrested on  suspicion of having committed felonies to provide a DNA sample to the government. Proponents of the law point out that it helps identify criminals by allowing the government to compare the DNA samples it collects from arrestees to other DNA profiles found in criminal databases. Because DNA is unique to every individual, matching DNA profiles can lead to the perpetrators of unsolved crimes.

Critics, however, worry that the law represents an undue intrusion on our privacy. In effect, the law requires individuals to provide a DNA sample even though they may not be convicted of any crime ultimately. The DNA thus obtained is stored in databases accessible to local, state, national, and international law enforcement agencies.

In 2009, the ACLU challenged the law arguing that it was unconstitutional under the Fourth Amendment’s prohibition on unreasonable searches and seizures.

In a 2-1 decision, the Ninth Circuit balanced the government’s interests against those of the individual affected by the law and held that the law did not violate the Fourth Amendment. It explained:

Given the arrestee’s diminished privacy interests; the de minimis nature of the physical intrusion entailed in the taking of a buccal swab; the carefully circumscribed scope of the DNA information being extracted; the stringent limits on the manner in which that information may be used; and the well-established law enforcement interest in obtaining arrestee’s identifying information, and further, to deter future criminal acts and to exculpate innocent arrestees—the balance of interests tilts strongly in favor of upholding the constitutionality of [the law].

The case is significant because it provides an indication on whether similar laws enacted in other states will survive constitutional scrutiny. Last year, New Jersey became the 25th state to have passed a DNA arrestee law. 

Michael Risher, an attorney working for the ACLU said his clients would seek review of the decision by the full Ninth Circuit.