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California DNA Collection Law Struck Down 192

Posted by Unknown Lamer
from the mark-of-the-beast dept.
wiedzmin writes with an article in Wired about DNA collection from criminals in California. From the article: "A California appeals court is striking down a voter-approved measure requiring every adult arrested on a felony charge to submit a DNA sample. The First District Court of Appeal in San Francisco said Proposition 69 amounted to unconstitutional, warrantless searches of arrestees. More than 1.6 million samples have been taken following the law's 2009 implementation. Only about a half of those arrested in California are convicted." Note that the State can still appeal the ruling; according to the article, the Attorney General's office has made no comment as to whether they will do so.
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California DNA Collection Law Struck Down

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  • by mr1911 (1942298) on Tuesday August 09, 2011 @05:23PM (#37037482)
    Arrest != Conviction

    The appeals court made the correct ruling. Now they just need to order all of the samples destroyed.
    • by Intropy (2009018)
      I was about to say that it doesn't really seem to be warrantless search so much as part of a sentence. And then I saw your comment, checked TFA, and realized it said "arrested" not "convicted." Yeah, completely obvious ruling. I guess my brain wanted to assume that the people passed something sensible rather than something moronic. I should know better by now.
      • by icebike (68054)

        Police actually don't need a warrant to search someone upon arrest. Nor do you have the right to refuse a search upon arrest.
        You can be searched for weapons, drugs, stolen property, etc without a warrant whenever the arrest takes place without a warrant.

        It law doesn't extend to bodily fluids, but the cops wanted to push the envelope, and this law allowed them to do so, until now.

        Once convicted and sentenced to any correctional institution, all bets are off. The rules of the DOC are incorporated in every s

        • by mr1911 (1942298)
          Yeah, but they need to be able to state why they arrest you. If they arrest you for no better reason than to search you, whatever they found in that search is inadmissible as proof against you.

          At least that is the way it is supposed to be. It comes down to how slimy the prosecution is and/or how good your attorney is.
          • by icebike (68054)

            True, you are usually told immediately what you are being charged with, and then you are cuffed, and searched, and if they find illegal substances in your pockets MORE charges are added on.

            And that's just the preliminary search. After the ride in the squad car it happens all over again.

            I'm sure there are lesser standards for simple infractions (drunk and disorderly types of stuff) as opposed to crimes like assault, burglary, etc. But if they take you in, they have to search you.

            Otis doesn't get to wander

            • by DJRumpy (1345787)

              It is my understanding that the search of your person is basically a requirement for an officers safety and no court would undo that. An officer must ask to search your home, or your car and you can refuse them consent. They can and sometimes do proceed without consent, which will often make any evidence they find inadmissible unless they can prove they had due cause for the search (for instance you are drunk driving and they search your vehicle for open containers, or they smell it on your breath through t

              • by icebike (68054)

                Exactly right.

                The constitution does not protect you from search and seizure, it protects you from UNREASONABLE search and seizure.

                Unreasonable is a pretty slippery word. Customs can seize your cell phone when you enter the US without even leveling a charge or having any real suspicion. Simply because courts have found it is "reasonable" that the United States may defend its borders and control the flow of goods into the country.

                • by fyngyrz (762201) on Tuesday August 09, 2011 @09:57PM (#37039712) Homepage Journal

                  Unreasonable is a pretty slippery word

                  Exactly wrong. Unreasonable isn't slippery at all, at least, not in the case of search. It's defined right in the 4th amendment, quite specifically. Go read it. [usconstitution.net]

                  Also, the courts have no authority to abrogate the meaning of the 4th amendment. Article three awards the power to judge guilty or not; it does not award the power to alter. That is limited to article five. This is simply the government acting out of the bounds of its authorization, exerting, in this case, power that was explicitly forbidden to it.

        • by fyngyrz (762201)

          Police actually don't need a warrant to search someone upon arrest. Nor do you have the right to refuse a search upon arrest.

          Actually, police DO need a warrant to search a US citizen's person, home, papers or effects. The 4th amendment is quite specific:

          The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

      • Far from "obvious" given our recent rash of Paid Rulings.

        No, I will not wear tinfoil.

        Just that for the moment it's too early for this one. Give it 2 years.

    • Re: (Score:3, Insightful)

      by trunicated (1272370)
      The problem is Mr. and Mrs. John Q. Voter can't tell the difference between "accused" and "convicted".
    • by msauve (701917) on Tuesday August 09, 2011 @05:38PM (#37037648)
      How does this differ from collecting fingerprints at arrest? Because they draw blood (I'm assuming that's what they do)? How about if they brush their hair, and keep some follicles?

      At least in my state, fingerprints are collected upon arrest, but are supposed to be destroyed if there is no conviction.
      • Took the words out right of my mouth. Given a similar "destruction upon not-guilty" provision (or better yet, no submission to database prior to conviction), the practice seems perfectly reasonable to me.
      • You answered your own question:

        but are supposed to be destroyed if there is no conviction.

        That is not the case for this system, the DNA is kept on file for at least 2 years, can be kept longer if the police request it, and there are no penalties if the lab 'accidentally' forgets to remove it from the DB after the 2 years are up.

      • by PitaBred (632671) <slashdotNO@SPAMpitabred.dyndns.org> on Tuesday August 09, 2011 @05:56PM (#37037808) Homepage

        Because your genes can tell a LOT more about you than just your fingerprints. DNA is more than identification.

      • In California, we get fingerprinted at the DMV (granted, it's only a thumbprint thought).

      • by suutar (1860506)
        These are also supposed to be removed from the statewide databank when they're notified that the subject is no longer a suspect. But the time limit for notification is 2 years. And if they happen to not actually remove it, and it gets matched in a search, the result is not invalidated. And of course local law enforcement can keep their own database.
        (Actually, the prescribed method is cheek swabs)
      • by DM9290 (797337)

        How does this differ from collecting fingerprints at arrest?

        well DNA not only identifies you, it identifies your siblings and your entire family?

        • by msauve (701917)
          "DNA not only identifies you, it identifies your siblings and your entire family?"

          Which, if your family is native to the US, is already a matter of public record, so what's your point?

          Furthermore, I assume that they're actually cataloging the DNA markers which allow statistically unique identification, not sequencing the entire genome. Those markers have been chosen so you are unique from your parents and siblings.
    • by magarity (164372)

      Arrest != Conviction

      No but you usually have to at least be under suspicion to get arrested. Keep in mind this was a ballot initiative - the people of California voted this on themselves. Meanwhile the people in Texas tried to curb TSA's subjecting everyone for suspicion of trying to take a plane ride and they were slapped down by the feds.

      • by mr1911 (1942298)

        No but you usually have to at least be under suspicion to get arrested.

        In theory yes. In reality, you will find this is abused more than you would like to believe.

        Meanwhile the people in Texas tried to curb TSA's subjecting everyone for suspicion of trying to take a plane ride and they were slapped down by the feds.

        That is a big part of the problem.

        Keep in mind this was a ballot initiative - the people of California voted this on themselves.

        That is the rest of the problem.

    • by interkin3tic (1469267) on Tuesday August 09, 2011 @05:39PM (#37037660)

      Arrest != Conviction

      Law enforcement and legislators haven't been able to see the distinction for a long time. It's a wonder we still have courts.

      • by Nimey (114278)

        Sheesh. Next thing you'll be calling for some judicial activism, Citizen.

      • by magarity (164372)

        The legislature has nothing to do with it - this is over a ballot initiative. Basically the citizens of California ordered their police to do this to them upon arrest.

        • ... ah, good point, the one group of people more incompetent at lawmaking than our elected reps are, of course, ourselves directly.

          One of these days, I'm going to start a referendum to prevent any further referendums.
    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Now they just need to order all of the samples destroyed.

      They can not order them destroyed because they are likely out of the hands of the state at this point and in the fed's hands. A state court can not order the feds to do squat. But any person ever charged with a crime based on evidence gained from this DNA database has a 4A claim to bounce the evidence (exclusionary rule)

    • Now they just need to order all of the samples destroyed.

      They can not order them destroyed because they are likely out of the hands of the state at this point and in the fed's hands. A state court can not order the feds to do squat. But any person ever charged with a crime based on evidence gained from this DNA database has a 4A claim to bounce the evidence (exclusionary rule)

    • by Hatta (162192)

      The appeals court made the correct ruling

      Don't worry, the Supreme Court will fix all that.

    • by MarkvW (1037596)

      Arrest != Conviction

      While that statement is true, it has NOTHING to do with the discussion. The correct analysis centers on this:

      Probable Cause to Arrest != Probable Cause to Take DNA

      That's the proper issue.

      • While that statement is true, it has NOTHING to do with the discussion.

        Well, it does, insofar as TFS asserts that this has to do with DNA collection from "criminals" rather than from arrested suspects.

    • by mattack2 (1165421)

      I don't agree that it's obvious, and I hope they appeal the ruling.

      I had to sign up for selective service (draft) and I didn't want to. If there were DNA & fingerprint records for more people, more criminals would be caught.

  • by elrous0 (869638) * on Tuesday August 09, 2011 @05:36PM (#37037626)

    Apparently, they did at least try to specify, initially, that they could only keep these DNA profiles for 2 years. But then they stripped even that restriction of any teeth by allowing the lab to keep it indefinitely (based only on the assurance by the arresting cops that the suspect was still part of an "ongoing investigation") and absolving the lab of any legal penalties for not purging profiles from the database (or any defendant from claiming in his defense that his sample should have been purged).

  • slashdot fail (Score:4, Insightful)

    by jalfrock (982820) on Tuesday August 09, 2011 @05:39PM (#37037662)
    The introductory comment says it's about "DNA collection from criminals". The whole point is that half of these people are *not* "criminals"!
  • What's the difference between making a person give up fingerprints and giving up DNA without a warrant? Either may be used to search databases, that is, for fishing for possible links to crimes. I think that the two are very much analogous.

    • Except the information stored in your fingerprints cannot be used to determine whether you have certain gene sequences that make you a higher risk factor for genetic diseases like your DNA can. DNA is a lot more than a unique identifier from person to person (and whether or not it is that is debatable). It stores a lot of personal, private data about you.

      And if you think someone other than the police will never get their hands on this database (or, at least, part of it) eventually, you are kidding yours
  • by cobrausn (1915176) on Tuesday August 09, 2011 @06:10PM (#37037926)
    Is poorly named unless the police also have to give a DNA sample to the arrested.
  • by jvonk (315830) on Tuesday August 09, 2011 @06:21PM (#37038018)
    The US Marshals collect DNA [usmarshals.gov] from all the people they arrest, per 42 USC 14135a [cornell.edu].

    Excerpt:

    (a) Collection of DNA samples
    (1) From individuals in custody
    (A)
    The Attorney General may, as prescribed by the Attorney General in regulation, collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States. The Attorney General may delegate this function within the Department of Justice as provided in section 510 of title 28 and may also authorize and direct any other agency of the United States that arrests or detains individuals or supervises individuals facing charges to carry out any function and exercise any power of the Attorney General under this section.

    Automatic expurgation of DNA data upon acquittal? Ha.

    • by amiga3D (567632)

      I wonder what the founding fathers would think of all this....but of coursed if they were alive today they would be considered anti-government terrorists.

  • wiedzmin writes with an article in Wired about DNA collection from criminals in California.

    Actually, no, the whole point (and a key factor in it beingstruck down) is that it is not about DNA collection from criminals.

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