California DNA Collection Law Struck Down

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.

Re:Should have been obvious all along

[DeadCatX2]

If the police arrest you, they still need a warrant to search your home.

Re:Should have been obvious all along

[MozeeToby]

Not everyone that gets arrested is arrested for an outstanding warrant. You can be arrested for 'Obstructing Justice' for taking a video of police beating an unarmed man as an example. Whether the courts will see it that way or not is another argument, but a police officer can essentially arrest you for anything they want, whenever they want. Unlawful arrest charges against cops are virtually unheard of.

Re:Suspicion comes before arrest?

[Ohio Calvinist]

If the person is arrested and there is compelling evidence, the court might allow for a DNA sample to be taken and compared against cases where there is a reasonable suspicion. Arresting someone (which can be done at-will, for almost any reason), so that the police can expand their DNA database and hope that the DNA search will turn up a match for some crime in which they previously had no suspicion is a pretty far reach and is sloppy police work. The issue is the burden in which the police need to draw the sample (ought to be more than the burden for arrest), the retention and maintenance of the data, and to what extent the police can use the DNA to try to develop further charges in which there is no reasonable suspicion.

Re:Should have been obvious all along

[DeadCatX2]

I don't know about that. Judging from this web site [aele.org] which purports to be "law enforcement training" written by Emory A. Plitt, Jr, Associate Judge of the Circuit Court in Bel Air, Maryland, you're wrong. Now, unless you're a lawyer or a judge with credentials equal to or greater than the Honorable Emory A. Plitt, Jr. then I think you lose this one.

Can an officer search a person at the time of arrest?

The Fourth Amendment allows a number of exemptions from the general rule that a warrant is needed to search. One of these exemptions is a search incident to an arrest. If the arrest is lawful, the search of the person arrested is lawful. There are two reasons for a search incident to an arrest: (1) to find and remove any objects or property which may be used as a weapon against the officer or others and (2) to seize any contraband or evidence of a crime which could be destroyed, lost, stolen, etc. if not immediately seized. These searches are considered to be reasonable under the Fourth Amendment. The search may occur immediately at the scene of the arrest and/or upon arrival at the station.

I'm pretty sure that saving a DNA swab does not fit into reasons 1 or 2, above.

Are there any general rules which apply to all strip and body cavity searches of arrested persons?

Like many situations that officers must deal with, there is no one Supreme Court case or other appellate court case or cases which set forth all the rules for you in one place. As a result of the many lawsuits over these kinds of searches, there are some general rules which apply to all such searches: ...

6) Strip searches should never be done randomly or at the whim of an officer;

7) The mere fact of an arrest does not allow a strip search or body cavity search just because the person was arrested;

Regarding fingerprinting, while the primary purpose of fingerprinting is identification, DNA is a whole different beast. For instance, DNA from a relative can be used to implicate someone else for a crime, and the use of DNA collected one person against someone who was never arrested is pretty clearly an egregious violation of privacy. Remember, it's not just the arrested person's privacy that you're violating, it's their entire family.