Courtesy of: James R. Touchstone, Esq.
On April 2, 2018, in the case of People v. Buza, 2018 Cal. LEXIS 2245 (Cal. Apr. 2, 2018), the Supreme Court of California held that the DNA Act of California, which permits law enforcement officials to collect DNA samples from a felony arrestee by means of swabbing the inside of a person’s cheek, was constitutional under the California Constitution. The Court was guided in its ruling by the U.S. Supreme Court’s decision upholding DNA collection under the U.S. Constitution in Maryland v. King.
California voters passed Proposition 69 in 2004. Known as the “DNA Fingerprint, Unsolved Crime and Innocence Protection Act” (“DNA Act”), Proposition 69 expanded the requirements for the collection of DNA identification information, as well as fingerprints, for law enforcement purposes to anyone arrested for felony offenses. The DNA Act also applies to anyone convicted of a felony offense. The law states that such collection should be “immediately after arrest, or during the booking process as soon as administratively practicable,” but “prior to release on bail or pending trial or any physical release from confinement or custody”
Under the DNA Act, DNA samples are sent to a lab to create a unique DNA identification profile. These profiles are then stored in California’s DNA databank, which is part of a nationwide database that is searchable at federal, state, and local levels by law enforcement agencies. Information gleaned from an individual’s DNA is to be kept confidential, and anyone who knowingly misuses such samples or associated DNA profiles is subject to criminal prosecution or civil damages.
The DNA Act provides that if an arrestee is cleared of charges, and there is no other basis for keeping the information, the arrestee “shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the databank program.” An arrestee may request expungement if he or she is released without being charged, if all qualifying charges against the arrestee are dismissed, or if the arrestee is found not guilty or factually innocent of all qualifying charges. Federal law similarly requires states to expunge the DNA profile of any person cleared of qualifying charges from the nationwide database of DNA profiles.
In January 2009, a San Francisco police officer saw Mark Buza running away from a police car that had burning tires. Police found him hiding nearby and searched him. Finding items suggesting Buza burned the tires, police arrested Buza for arson and related felonies. Buza was transported to jail. At booking several hours after his initial arrest, a jail official informed Buza that he was required to provide a DNA sample by swabbing the inside of his cheek. Buza refused. A jury later convicted him of both the arson-related felonies and the misdemeanor offense of refusing to provide a specimen required by the DNA Act.
Buza appealed. The First District Court of Appeal reversed his misdemeanor conviction, holding that the DNA Act violated Buza’s Fourth Amendment rights under the United States Constitution. While the case was pending on appeal, the United States Supreme Court addressed a similar issue in Maryland v. King, and reached a different conclusion than the First District. The Supreme Court held that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Following the high court’s decision in King, Buza’s case returned to the First District Court of Appeal for reconsideration. On remand, the First District again reversed Buza’s misdemeanor conviction on the ground that the DNA Act violated the California Constitution’s prohibition on unreasonable searches and seizures. On appeal, the California Supreme Court granted review “to decide whether the collection and analysis of forensic identification DNA database samples from felony arrestees, as required by Proposition 69, violates either article I, section 13 of the California Constitution or the Fourth Amendment to the United States Constitution.”
- Fourth Amendment and Maryland v. King
The Fourth Amendment, the California Supreme Court observed, provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Noting that the Court of Appeals “declined to decide whether the differences between the California law and the Maryland law change the Fourth Amendment calculus” under the King decision, the Supreme Court first considered whether it was unreasonable within the meaning of the Fourth Amendment to require Buza to provide a cheek swab DNA sample to jail officials as part of the booking process after his felony arrest, in light of the King decision.
Discussing King, the Court noted that DNA technology use was “increasingly widespread” and that all 50 states and the federal government required the collection of DNA samples from anyone convicted of a felony. The Court explained that the King decision determined whether DNA sample collection of people arrested, but not yet convicted, on felony charges was prohibited under the Fourth Amendment.
The Court explained that in King, a Maryland law authorized law enforcement authorities to collect DNA samples from an individual charged with certain “crime[s] of violence,” including murder, rape, first degree assault, arson, sexual assault, as well as burglary and an attempt to commit one of these enumerated crimes. The defendant in King had been arrested and charged with one such offense. The same day, his cheek was swabbed for DNA as part of the booking process. The sample matched DNA that had been collected from a rape victim years earlier, and the defendant was charged with and convicted of the rape. Appealing that conviction, the King defendant argued that the DNA sample had been taken in violation of his Fourth Amendment rights and should have been suppressed.
The United States Supreme Court ultimately reviewed the decision and upheld the conviction. The Court agreed with the Maryland court that a buccal swab for the collection of DNA samples was a search under the Fourth Amendment, but “like fingerprinting and photographing, a legitimate police booking procedure” that was reasonable under the Fourth Amendment.
The United State Supreme Court concluded in King that the legitimate governmental interests in collecting the DNA evidence outweighed the privacy interest affected by the “minimal intrusion” of the DNA buccal swab. The high court added that a felony arrestee has a diminished expectation of privacy compared to the general public, and that Maryland’s law had some statutory protections that prevented further invasion of privacy.
Application of King
Having reviewed the high court’s decision in
King, the California Supreme Court applied it to Buza’s appeal. Buza said that California’s DNA Act differed significantly from Maryland’s DNA law in three ways, arguing that: (1) the DNA Act applies to a broader category of arrestees than the Maryland law; (2) the DNA Act, unlike the Maryland law, authorizes both collection and testing of DNA samples before an accusatory pleading is filed in court and before a judicial determination has been made that the charges are valid; and (3) the DNA Act, unlike the Maryland law, does not provide for automatic destruction of the DNA sample if the arrestee is cleared of felony charges. Buza felt the implications of these differences were critical.
Addressing Buza’s first claimed distinction, the Court found that since Buza was actually convicted of felony arson, deemed a “serious felony” under California law, his claim that King permitted states to mandate collection of DNA samples only from persons arrested for felonies classified as particularly serious or violent had no bearing upon the constitutional balance as applied to Buza. The Court noted that, under In re Cregler, the “ordinary rule is ‘that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself.’” For Buza’s second claimed distinction, the Court noted that “King approved ‘DNA identification’ – which necessarily involves both taking and analyzing the sample—as a ‘legitimate police booking procedure’ that enables law enforcement to know whom they have in custody.” The Court also noted that it was upon booking that the attempt was made to collect Buza’s DNA. The Court thus found Buza’s second claimed distinction regarding the timing difference of DNA collection and DNA testing was not relevant here. Finally addressing the third claimed distinction, the Court declared that it did not want to speculate about the constitutionality of the expungement process as applied to other circumstances beyond those that led to Buza’s conviction. The Court concluded that since Buza was actually convicted of a felony, never sought expungement or even claimed to be entitled to do so, Buza’s claimed expungement distinction did not affect the constitutional analysis as applied to Buza.
The Court concluded that none of the differences that Buza raised meaningfully changed the Fourth Amendment analysis struck in King as applied to Buza. Buza refused to submit to a buccal DNA swab upon booking after a proper arrest for a serious offense. King applied directly to Buza’s circumstances, and so his conviction for his misdemeanor DNA conviction did not violate the Fourth Amendment. The Court next analyzed the issue of whether collection of the DNA sample violated Buza’s rights under the California Constitution.
- Article 1, section 13 of the California Constitution
The Court next addressed whether the Court of Appeal was correct in holding that the DNA Act’s provision requiring Buza to provide a DNA sample as part of the booking process violated the prohibition on unreasonable search and seizure under article 1, section 13 of the California Constitution. Evaluating state constitutionality of searches and seizures, the Court explained, required a similar balancing of interests as used in King. The Court, while acknowledging that the California Constitution is “a document of independent force,” explained that U.S. Supreme Court decisions interpreting parallel federal text are “entitled to respectful consideration,” particularly in search and seizure law. The Court noted that it “ordinarily resolved questions about the legality of searches and seizures by construing the Fourth Amendment and article I, section 13 in tandem.” (As we discussed in our Amicus Brief, the language between the two differs very slightly and not meaningfully.) The Court explained that the primary question facing it here was whether there was sufficient reason to conclude, despite the Fourth Amendment guidance provided in King, that California voters exceeded constitutional bounds in mandating the collection of DNA sample from a person arrested and booked on probable cause to believe he had committed a serious offense.
Buza claimed there was enough reason because the central premise of King was flawed. He claimed King concluded incorrectly that the DNA collection from persons arrested for serious offenses serves a legitimate governmental interest in safely and accurately processing and identifying the persons they take into custody. Buza claimed that arrestee DNA information was not used to determine an arrestee’s identity, but only for investigation of possible other crimes, making it unreasonable without a warrant or specific suspicion towards an individual.
The Court disagreed. The Court noted that, in People v. Robinson, it previously had upheld the practice of mandatory collection of DNA samples from convicted felons precisely because of its utility in accurately and reliably identifying criminal offenders, like fingerprinting, and further that individuals in lawful custody could not claim privacy in their identification to avoid the collection. And Robinson recognized that a DNA profile was impossible to alter, unlike hair color or other physical features. The Court further explained that arrestee identification was not the end goal, citing Loder v. Municipal Court. The primary purpose of identification, the Court observed, was to facilitate the gathering of information about the arrestee contained in police records, which then could shape decisions about how to proceed with the arrestee.
The Court also rejected Buza’s argument that it should not rely upon King because Section 13 of the California Constitution afforded greater privacy rights than those afforded under the Fourth Amendment. The Court concluded that cases relied upon by Buza involved booking searches at the time of arrest in the field. Buza’s booking search, the Court noted, occurred at the time of the actual booking into jail. The Court concluded that, since police officials asked Buza for a DNA sample upon booking after he was arrested on probable cause for a serious offense, the requirement was not unreasonable.
The Court emphasized that its holding was limited to the “sole question” whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require Buza to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson. The Court noted that Buza raised several concerns about the potential application of the DNA Act in other cases involving other, differently situated arrestees, and speculated on changes in technology that might result in the misuse of his DNA samples and profiles in ways that were uniquely invasive of personal privacy. The Court observed that the DNA Act could raise additional constitutional questions that would require resolution in other cases, but the Court was mindful of its role in reviewing a law duly enacted by California voters in the exercise of their initiative power. The Court stated: “We have often said that ‘it is our solemn duty to jealously guard’ the initiative power secured by the California Constitution, and that we accordingly may not strike down voter measures ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ (Legislature v. Eu (1991) 54 Cal.3d 492, 501 [286 Cal. Rptr. 283, 816 P.2d 1309].) Whatever else this duty might entail, it surely entails an obligation to avoid invalidating the work of the California electorate on the ground that ‘the law would be unconstitutionally applied to different parties and different circumstances’” from the circumstances that Buza’s situation presented.
The Court thus concluded that the DNA swab requirement was valid under both the federal and state Constitutions, and expressed “no view on the constitutionality of the DNA Act as it applies to other classes of arrestees.” Accordingly, the Supreme Court reversed the judgment of the Court of Appeal.
Three of the seven Justices of the Court dissented. The dissent asserted that, though Buza was ultimately convicted after his felony arrest, he should be considered for constitutional analysis purposes as “no different than any felony arrestee who has not been charged, convicted, or found by a neutral magistrate to be lawfully detained.” This distinction was critical to the dissent because it revealed how the DNA Act would result in a “biological dragnet,” enabling a vast sweep of DNA collection and retention, and that without any judicial determination of the validity of an arrest prior to the attempt to collect the DNA. The dissent presented data that showed that over an eight-year period, nearly one in three felony arrests (a total of 724,492 arrests) did not result in a conviction. Yet, the dissent maintained, “the state has no legal basis for retaining the DNA sample or profile if no charges are filed, if the charges are dismissed, if the person is acquitted or found not guilty or factually innocent, or if the conviction is reversed and the case is dismissed, unless there is some other basis such as a prior offense that qualifies the person for inclusion in the state DNA database. (Pen. Code, section 299, subds. (a), (b).)” The dissent found that the DNA Act’s expungement processes were inadequate for such numbers, arguing instead for an automatic expungement process for those DNA samples and profiles for which the state had no legal basis in keeping. The dissent thus concluded that the DNA Act was unconstitutional under California law because it invaded people’s reasonable expectation of privacy in their personal genetic information.
HOW THIS AFFECTS YOUR AGENCY
People v. Buza builds on the U.S. Supreme Court’s holding in Maryland v. King to further empower agencies to confidently use the procedures provided for in the DNA Act to collect DNA evidence from individuals arrested for felony offenses. As discussed in the amicus brief filed by Jones & Mayer with the Supreme Court in this case, DNA evidence is widely recognized as reliable and uniquely valuable for both identification and investigative purposes. By holding that collection of DNA samples from felony arrestees is constitutional under both the federal and California Constitutions, the Court’s decision further justifies the use of this powerful investigative tool for law enforcement purposes. Public awareness of the increasing legal acceptance of collection of DNA evidence by law enforcement may also provide the additional benefit of allaying privacy concerns expressed by citizens.
However, agencies should be cognizant that the Court limited its holding to the specific facts and circumstances surrounding defendant Buza’s arrest and conviction. The Court chose not to speculate on the constitutionality of the DNA Act as applied under different circumstances.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at firstname.lastname@example.org.
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 569 U.S. 435 (2013).
 Pen. Code, section 295 et seq.
 DNA collection on those convicted of a felony was upheld in People v. Robinson, 47 Cal.4th 1104 (2010).
 Pen. Code, section 296.1, subd. (a)(1)(A).
 Pen. Code, section 299, subd. (a).
 Pen. Code, section 299, subd. (b).
 34 U.S.C. section 12592(d)(2)(A).
 Pen. Code, section 298.1, subd.(a).
 569 U.S. 435 (2013).
 Id. at pp. 465-466.
 Cal. Const., art. I, section 13.
 569 U.S. at p. 446.
 Pen. Code, section 1192.7, subd. (c)(14).
 56 Cal.2d 308, 313 (1961).
 American Academy of Pediatrics v. Lungren, 16 Cal.4th 307, 325 (1997).
 People v. Teresinski, 30 Cal.3d 822, 836 (1982).
 47 Cal. 4th 1104 (2010).
 17 Cal.3d at pp. 866–867.