Filed 4/2/18
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S223698
v.
Ct.App. 1/2 A125542
MARK BUZA,
San Francisco County
Defendant and Appellant.
Super. Ct. No. SCN 207818
In 2004, California voters passed Proposition 69 (Prop. 69, as approved by
voters, Gen. Elec. (Nov. 2, 2004); known as the “DNA Fingerprint, Unsolved
Crime and Innocence Protection Act” (DNA Act)) to expand existing requirements
for the collection of DNA identification information for law enforcement
purposes. The DNA Act requires law enforcement officials to collect DNA
samples, as well as fingerprints, from all persons who are arrested for, as well as
those who have been convicted of, felony offenses. (Pen. Code, § 296.1, subd.
(a)(1)(A).
Defendant Mark Buza was arrested for arson and related felonies and
transported to jail. At booking, a jail official informed defendant that he was
required to provide a DNA sample by swabbing the inside of his cheek. He
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.
(Pen. Code, § 298.1, subd. (a).
SEE DISSENTING OPINIONS
The Court of Appeal reversed defendant’s misdemeanor refusal conviction,
holding that the DNA Act violated defendant’s rights under the Fourth
Amendment to the United States Constitution. While the case was pending on
appeal, the United States Supreme Court addressed a similar issue in Maryland v.
King (2013) 569 U.S. 435 (King), and reached a different conclusion. The high
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.” (Id. at pp. 465–466.
Following the high court’s decision in King, this case returned to the Court
of Appeal. On remand, the Court of Appeal again reversed defendant’s
misdemeanor refusal conviction, this time on the ground that the DNA Act
violates the California Constitution’s prohibition on unreasonable searches and
seizures. (Cal. Const., art. I, § 13.
Defendant raises a number of questions about the constitutionality of the
DNA Act as it applies to various classes of felony arrestees. But the question
before us is a narrower one: Whether the statute’s DNA collection requirement is
valid as applied to an individual who, like defendant, was validly arrested on
“probable cause to hold for a serious offense”—here, the felony arson charge for
which defendant was ultimately convicted—and who was required to swab his
cheek as “part of a routine booking procedure” at county jail. (King, supra, 569
U.S. at p. 465.) Under the circumstances before us, we conclude the requirement
is valid under both the federal and state Constitutions, and we express no view on
the constitutionality of the DNA Act as it applies to other classes of arrestees. We
accordingly reverse the judgment of the Court of Appeal in this case.
2
I.
A.
For decades before the DNA Act, California law had required the collection
of biological samples from individuals convicted of certain offenses. In 1983, the
Legislature enacted legislation requiring certain sex offenders to provide blood
and saliva samples before their release or discharge. (Stats. 1983, ch. 700, § 1,
pp. 2680–2681, codified at Pen. Code, former § 290.2.) In 1998, the Legislature
enacted the “DNA and Forensic Identification Data Base and Data Bank Act,”
which required the collection of DNA samples from persons convicted of certain
felony offenses, including certain sex offenses, homicide offenses, kidnapping,
and felony assault or battery. (Stats. 1998, ch. 696, § 2, pp. 4574–4579; Pen.
Code, former § 296, subd. (a).
When the California electorate voted to pass Proposition 69 on the 2004
general election ballot, it substantially expanded the scope of DNA sampling to
include individuals who are arrested for any felony offense, as well as those who
have been convicted of such an offense. In People v. Robinson (2010) 47 Cal.4th
1104 (Robinson), this court upheld the expanded DNA collection requirement as
applied to persons convicted of felony offenses. The question now before us
concerns the application of the DNA Act to persons who have been arrested for,
but not yet convicted of, a felony offense.
In its statutory findings and declarations of purpose, Proposition 69
explained that expansion of the DNA databank program was warranted to serve a
“critical and urgent need to provide law enforcement officers and agencies with
the latest scientific technology available for accurately and expeditiously
identifying, apprehending, arresting, and convicting criminal offenders and
exonerating persons wrongly suspected or accused of crime.” (Prop. 69, supra,
3
§ II, subd. (b).) With respect to arrestees in particular, Proposition 69 declared:
“The state has a compelling interest in the accurate identification of criminal
offenders”; that “DNA testing at the earliest stages of criminal proceedings for
felony offenses will help thwart criminal perpetrators from concealing their
identities and thus prevent time-consuming and expensive investigations of
innocent persons”; and “it is reasonable to expect qualifying offenders to provide
forensic DNA samples for the limited identification purposes set forth in this
chapter.” (Id., § II, subds. (e), (f).
The DNA Act provides that, as of January 1, 2009, all adult felony arrestees
“shall provide buccal swab samples, right thumbprints, and a full palm print
impression of each hand, and any blood specimens or other biological samples
required pursuant to this chapter for law enforcement identification analysis.”
(Pen. Code, § 296, subd. (a).) Providing a buccal swab sample requires the
arrestee to apply a swab to the inside of his or her cheek to collect the “inner cheek
cells of the mouth,” which contain DNA. (Id., § 295, subd. (e).) The statute
provides that these specimens, samples, and print impressions shall be collected
“immediately following arrest, or during the booking . . . process or as soon as
administratively practicable . . . but, in any case, prior to release on bail or pending
trial or any physical release from confinement or custody.” (Id., § 296.1, subd.
(a)(1)(A).) Refusal to provide any of the required specimens is punishable as a
misdemeanor. (Id., § 298.1, subd. (a).
Collected DNA samples are sent to California Department of Justice’s
DNA Laboratory for forensic analysis. (Pen. Code, §§ 295, subds. (f), (g),
(i)(1)(C), 295.1, subd. (c).) The laboratory uses the samples to create a unique
DNA identification profile, using genetic loci that are known as “junk” or
“noncoding” DNA, because the loci have no known association with any genetic
trait, disease, or predisposition. (See King, supra, 569 U.S. at pp. 442–443, 445.
4
This profile is stored in California’s DNA databank. California’s DNA databank
is part of the Combined DNA Index System (CODIS), a nationwide database that
enables law enforcement to search DNA profiles collected from federal, state, and
local collection programs. (See ibid.; Pen. Code, § 299.6, subd. (b); Cal. Dept. of
Justice (DOJ), Bureau of Forensic Services (BFS), Laboratory Services, DNA
Analysis, <https://oag.ca.gov/bfs/services> [as of Apr. 2, 2018].) DNA profiles
stored by the DNA Laboratory may be accessed by law enforcement agencies.
(Pen. Code, § 299.5, subd. (f).) The DNA Laboratory must “store, compile,
correlate, compare, maintain, and use” DNA profiles for forensic casework, for
comparison with samples found at crime scenes, and for identification of missing
persons. (Id., § 295.1, subd. (c).
Information obtained from an arrestee’s DNA is confidential and may not
be disclosed to the public. (Pen. Code, § 299.5.) DNA samples and the biological
material from which they are obtained may not be used “as a source of genetic
material for testing, research, or experiments, by any person, agency, or entity
seeking to find a causal link between genetics and behavior or health.” (Id.,
§ 295.2.) Any person who knowingly uses a DNA sample or profile for any
purpose other than “criminal identification or exclusion purposes” or “the
identification of missing persons,” or who “knowingly discloses DNA or other
forensic identification information . . . to an unauthorized individual or agency”
for any unauthorized reason is subject to criminal prosecution and may be
imprisoned for up to three years and fined up to $10,000. (Id., § 299.5, subd.
(i)(1).) The Department of Justice is also subject to civil damages for knowing
misuse of a sample or profile by any of its employees. (Id., § 299.5, subd.
(i)(2)(A).
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
5
specimen and sample destroyed and searchable database profile expunged from
the databank program.” (Pen. Code, § 299, subd. (a).) 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. (Id., § 299, subd. (b).) The federal
legislation establishing CODIS likewise requires participating states to “promptly
expunge” the DNA profile of any person who is cleared of qualifying charges. (34
U.S.C. § 12592(d)(2)(A).
The DNA Act includes a broad severability provision. The provision
specifies that the invalidity of certain provisions or their application “shall not
affect other provisions or applications that can be given effect without the invalid
provision or application.” (Prop. 69, supra, § V, subd. (b).
B.
On the afternoon of January 21, 2009, a San Francisco police officer saw
defendant running away from a police car that had burning tires. Police found
defendant hiding nearby and searched him. Matches were found in defendant’s
pocket, a container of oil was found in his backpack, and a road flare and a bottle
containing a liquid that smelled like gasoline were discovered in the area where he
had been hiding.
Defendant was arrested and taken to county jail. There, several hours after
the initial arrest, a San Francisco sheriff’s deputy asked defendant to swab the
inside of his cheek for purposes of providing a sample of his DNA. The deputy
told defendant he was required by law to provide the sample, asked defendant to
read a form that described the pertinent requirements, and warned defendant that
refusing to provide a DNA sample was a misdemeanor. Defendant refused.
On January 22, 2009, a judge of the Superior Court found probable cause to
believe that defendant committed a public offense for which he could be detained,
6
namely, felony arson in violation of Penal Code section 451, subdivision (d). The
next day, the district attorney filed a felony complaint charging defendant with
that offense, as well as possession of combustible material or incendiary device
(id., § 453, subd. (a)), and vandalism (id., § 594, subd. (b)(1)). The complaint also
charged defendant with misdemeanor refusal to provide a DNA specimen (id.,
§ 298.1, subd. (a)). Defendant was arraigned on the same day and pleaded not
guilty to the charges.
Approximately three months later, defendant was tried before a jury.
Defendant moved for judgment of acquittal on the misdemeanor refusal charge,
arguing that the Fourth Amendment did not permit the state to compel arrestees to
furnish DNA samples. The court denied the motion. At trial, defendant admitted
to setting the police car on fire; he testified that while he regarded setting the fires
as a justified protest against government overreach, he knew his act was regarded
as illegal. Defendant also admitted to refusing to provide a DNA sample in
accordance with Penal Code section 298.1. The jury convicted defendant of all
charges.
The trial court ordered defendant to provide a DNA sample before he was
sentenced, and when defendant initially refused to comply with the order, the court
authorized the Sheriff’s Department to use reasonable force to obtain the sample.
Defendant then furnished a DNA sample. The court sentenced defendant to a
prison term of 16 months on the arson charge, imposed concurrent sentences on
the charges of possession of combustible material and misdemeanor refusal to
provide a DNA specimen, and stayed the sentence on the vandalism charge under
Penal Code section 654.
On appeal, the Court of Appeal reversed defendant’s conviction for
refusing to provide a DNA sample. The court held that “the DNA Act, to the
extent it requires felony arrestees to submit a DNA sample for law enforcement
7
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 the Fourth Amendment of the United States Constitution.”
We granted review. While the case was still pending, the United States
Supreme Court issued its decision in King, supra, which upheld a similar DNA
collection requirement against Fourth Amendment challenge. Following King, we
transferred this case to the Court of Appeal for reconsideration.
The Court of Appeal again reversed defendant’s conviction. Although the
court observed that California’s DNA collection law is broader than the Maryland
law at issue in King, the court declined to decide whether the differences between
the California law and the Maryland law change the Fourth Amendment calculus
under King. The Court of Appeal instead rested its decision on the prohibition on
unreasonable searches and seizures in article I, section 13 of the California
Constitution. In language closely paralleling its initial decision, the court held 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.”
In the wake of King, other California Courts of Appeal have addressed the
constitutionality of the DNA Act in the context of reviewing decisions regarding
the suppression of evidence derived from DNA samples collected from felony
arrestees. Those courts have concluded that, under King’s reasoning, the
collection and testing of arrestee DNA samples under the DNA Act does not
violate the Fourth Amendment.
8
We 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.1
II.
The Fourth Amendment to the United States Constitution provides, in
pertinent part: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated.” Article I, section 13 of the California Constitution provides, in
essentially identical language: “The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable seizures and searches
may not be violated.”
As the constitutional language itself makes plain, the “touchstone for all
issues” under both provisions is “reasonableness.” (Ingersoll v. Palmer (1987) 43
Cal.3d 1321, 1329; accord, e.g., Riley v. California (2014) 573 U.S. ___, ___ [134
S.Ct. 2473, 2482].) The question before us is whether it was unreasonable within
the meaning of one or both of these provisions to require defendant to use a cheek
swab to provide a DNA sample to jail officials as part of the booking process
following his arrest for arson. If so, defendant cannot be penalized for failure to
comply, and his misdemeanor refusal conviction must be reversed. If, on the other
hand, the requirement was reasonable, then defendant’s conviction stands. (See
1
Defendant did not invoke the California Constitution in the trial court or in
his first round of appellate briefing, instead relying solely on the Fourth
Amendment. The Court of Appeal, however, relied on the California Constitution
in its decision on remand after King. We accordingly address the questions raised
under both the Fourth Amendment and article I, section 13 of the California
Constitution.
9
Birchfield v. North Dakota (2016) 579 U.S. ___, ___–___ [136 S.Ct. 2160, 2172–
2173].
The United States Supreme Court’s decision in King, which was issued
while this appeal was pending, has significantly altered the terms of the debate.
After King, defendant no longer argues, as he had argued in the courts below, that
the Fourth Amendment categorically forbids the mandatory collection of DNA
from persons who have been arrested but not yet convicted of felony offenses.
Defendant argues instead that King should be either distinguished on its facts or
rejected as a matter of state constitutional law. Because both arguments require us
to consider the import of the United States Supreme Court’s decision in King, we
will begin there.
A.
King came to the high court against the backdrop of increasingly
widespread use of DNA technology in criminal justice systems nationwide. As
the court observed, all 50 states and the federal government require the collection
of DNA samples from individuals who are convicted of felony offenses. In recent
years, a majority of states and the federal government have also authorized the
collection of DNA from some or all persons arrested for felony offenses. (King,
supra, 569 U.S. at p. 445.) Although courts had generally approved the collection
of DNA samples following conviction, the permissibility of this expansion of
DNA sampling proved more controversial. The high court granted review in King
to resolve a conflict among federal and state courts “as to whether the Fourth
Amendment prohibits the collection and analysis of a DNA sample from persons
arrested, but not yet convicted, on felony charges.” (Id. at p. 442.
The specific question before the court concerned the application of a
Maryland law that authorized law enforcement authorities to collect DNA samples
from an individual charged with certain statutorily defined “crime[s] of violence,”
10
including murder, rape, first degree assault, kidnapping, arson, and sexual assault,
as well as burglary and an attempt to commit one of these enumerated crimes.
(King, supra, 569 U.S. at p. 443.) The defendant in King had been arrested and
charged with one such offense, “first- and second-degree assault for menacing a
group of people with a shotgun.” (Id. at p. 440.) 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 several years earlier, and the defendant was
charged with and convicted of the rape. Appealing that conviction, defendant
argued that the DNA sample had been taken in violation of his Fourth Amendment
rights and should have been suppressed. The Maryland Court of Appeals agreed
and overturned the rape conviction. (Ibid.
The United States Supreme Court reversed. The high court agreed with the
Maryland court that a buccal swab for the collection of DNA samples—like any
invasion of the body—is a search within the meaning of the Fourth Amendment,
“gentle” though the search may be. (King, supra, 569 U.S. at p. 446.) But the
court held that both the initial collection of a DNA sample and its subsequent
processing pursuant to CODIS procedures is, “like fingerprinting and
photographing, a legitimate police booking procedure that is reasonable under the
Fourth Amendment.” (Id. at p. 466.
The high court explained that, as a general rule, a search is presumptively
unreasonable if it is undertaken in the absence of a warrant or individualized
suspicion of wrongdoing. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S.
646, 652–653.) But “[i]n some circumstances, such as ‘[w]hen faced with special
law enforcement needs, diminished expectations of privacy, minimal intrusions, or
the like, the Court has found that certain general, or individual, circumstances may
render a warrantless search or seizure reasonable.’ ” (King, supra, 569 U.S. at
p. 447, quoting Illinois v. McArthur (2001) 531 U.S. 326, 330.) The court
11
concluded that the buccal swab of an arrestee on booking falls into a category of
routine searches, justified by special law enforcement needs, that is properly
analyzed “by reference to the proposition that the ‘touchstone of the Fourth
Amendment is reasonableness, not individualized suspicion.’ ” (King, at p. 448.
Weighing the privacy-related concerns at stake against law enforcement
needs, the court concluded that the search was reasonable. On the law
enforcement side of the balance, the court identified five interrelated governmental
interests in obtaining the DNA sample. First, the court explained, the state has an
interest in knowing “ ‘who has been arrested and who is being tried.’ ” (King,
supra, 469 U.S. at p. 450, quoting Hiibel v. Sixth Judicial Dist. Court of Nev.,
Humboldt County (2004) 542 U.S. 177, 191.) “A suspect’s criminal history,” the
high court continued, “is a critical part of his identity that officers should know
when processing him for detention,” and “[a] DNA profile is useful to the police
because it gives them a form of identification to search the records already in their
valid possession” for the suspect’s criminal history. (King, at pp. 450–451.) In
this respect, the court said, the profile serves the same purpose as a name or
fingerprints. (Id. at p. 451.) Second, the high court reasoned, “DNA identification
can provide untainted information to those charged with detaining suspects and
detaining the property of any felon,” which is significant because “officers must
know the type of person whom they are detaining, and DNA allows them to make
critical choices about how to proceed.” (Id. at p. 452.) Third, the court noted,
using DNA samples to determine whether the accused has committed other crimes
furthers the state’s “ ‘substantial interest in ensuring that persons accused of
crimes are available for trials.’ ” (Ibid.) This is so, it said, because “[a] person
who is arrested for one offense but knows that he has yet to answer for some past
crime may be more inclined to flee the instant charges,” thereby presenting “a risk
to law enforcement officers, other detainees, victims of previous crimes,
12
witnesses, and society at large.” (Id. at p. 453.) Fourth, the court explained, “an
arrestee’s past conduct is essential to an assessment of the danger he poses to the
public,” which may determine “whether the individual should be released on bail.”
(Ibid.) And fifth, the court noted, “the identification of an arrestee as the
perpetrator of some heinous crime may have the salutary effect of freeing a person
wrongfully imprisoned for the same offense.” (Id. at p. 455.
Law enforcement agencies, the court explained, “routinely have used
scientific advancements in their standard procedures for the identification of
arrestees” (King, supra, 569 U.S. at p. 456), including photographs, body
measurements, and fingerprints. The court observed that fingerprinting, in
particular, is “[p]erhaps the most direct historical analogue to the DNA
technology” at issue in the case (id. at p. 458): fingerprints have long been taken
for purposes of comparison to identify suspects and for purposes of matching them
to fingerprints taken from the scene of unsolved crimes, and electronic databases
are now available that facilitate the comparison (id. at pp. 436, 458–459). DNA
identification, the court noted, is a “markedly more accurate form of identifying
arrestees” and the “additional intrusion upon the arrestee’s privacy beyond that
associated with fingerprinting is not significant.” (Id. at p. 459.) “DNA
identification,” the court reasoned, “is an advanced technique superior to
fingerprinting in many ways, so much so that to insist on fingerprints as the norm
would make little sense to either the forensic expert or a layperson.” (Ibid.
Compared to this set of governmental interests, the high court concluded
that the privacy interests at stake were more limited. To begin with, the court
explained, the buccal swab used to obtain a DNA sample is a “minimal intrusion.”
(King, supra, 569 U.S. at p. 463.) Moreover, the court noted, “[o]nce an
individual has been arrested on probable cause for a dangerous offense that may
require detention before trial,” that person has a diminished expectation of privacy
13
and “freedom from police scrutiny.” (Ibid.) This diminished expectation
distinguishes arrestee searches from “the sort of programmatic searches of either
the public at large or a particular class of regulated but otherwise law-abiding
citizens” (id. at p. 462), such as checkpoint searches or the drug testing of political
candidates, for which the court has “insisted on some purpose other than ‘to detect
evidence of ordinary criminal wrongdoing.’ ” (Id. at p. 463.
The high court further concluded that analysis of the DNA sample, once
collected, does not result in a privacy intrusion that violates the federal
Constitution. (King, supra, 569 U.S. at p. 464.) It explained that the processed
DNA loci “come from noncoding parts of the DNA that do not reveal the genetic
traits of the arrestee” and that “law enforcement officers analyze DNA for the sole
purpose of generating a unique identifying number against which future samples
may be matched.” (Ibid.) It also noted that Maryland’s DNA law “provides
statutory protections that guard against further invasion of privacy” (id. at p. 465.);
in the court’s view, these statutory protections allayed the privacy concerns
associated with the state’s analysis of the DNA sample (ibid., citing NASA v.
Nelson (2011) 562 U.S.___, ___ [131 S.Ct. 746, 750]).
For these reasons, the 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.” (King,
supra, 569 U.S. at pp. 465–466.
B.
At least at first glance, King would seem to resolve the Fourth Amendment
question raised in this case. King holds that DNA identification of arrestees is
reasonable on booking following an arrest supported by probable cause to believe
14
the arrestee has committed a serious offense. Defendant in this case was asked to
provide a cheek swab as part of a routine booking procedure following an arrest
supported by probable cause to believe he had committed a serious offense—
namely, felony arson.
Defendant urges us to take a second look, however. He notes that while
California’s legal framework for the collection, analysis, and retention of arrestee
DNA is in many ways similar to the Maryland law upheld in King, it is not
identical. Defendant highlights three features of the DNA Act in particular that, in
his view, distinguish this case from King: (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.
Although these differences between the California and Maryland laws may
be relevant in another case involving a differently situated arrestee, this case
involves a defendant who was validly arrested on probable cause to believe he had
committed felony arson, and who was promptly charged with (and ultimately
convicted of) that offense. In the context of the particular case before us, we
conclude that none of the differences to which defendant points meaningfully
alters the constitutional balance struck in King.
We begin with defendant’s first argument, about the scope of the DNA
Act’s collection requirement. Defendant observes that the Maryland law at issue
in King authorized DNA collection only from those accused of specified serious
crimes, including a category defined as “crime[s] of violence” under state law,
whereas the DNA Act authorizes DNA collection from all felony arrestees. (King,
15
supra, 569 U.S. at p. 443.) Defendant argues that this difference is important
because the seriousness of the crime of arrest figures prominently in the high
court’s balancing analysis: The high court’s opinion states that “the necessary
predicate of a valid arrest for a serious offense is fundamental” (id. at p. 461), and
elsewhere uses language that suggests the court was particularly concerned with
persons arrested for “violent” or “dangerous” crimes (id. at pp. 453, 455). Such a
limitation makes sense, defendant contends, because such crimes are the kinds of
crimes that typically yield DNA evidence.
Defendant appears to read too much into the language on which he relies.
The high court identified the question before it more generally as “whether the
Fourth Amendment prohibits the collection and analysis of a DNA sample from
persons arrested, but not yet convicted, on felony charges.” (King, supra, 569
U.S. at p. 442.) And as a matter of ordinary usage, a felony is considered a
“serious” offense. (See, e.g., Carachuri-Rosendo v. Holder (2010) 560 U.S. 563,
574 [“A ‘felony,’ we have come to understand, is a ‘serious crime usu[ally]
punishable by imprisonment for more than one year or by death.’ ”].) Though the
court also occasionally referred to “violent” and “dangerous” crimes, King did not
purport to limit its holding to those felonies that happen to be classified as
“violent” or “dangerous” as a matter of state law, nor did it purport to create a new
classification of violent offenses as a matter of federal constitutional law.2
2
States are, of course, under no obligation to classify any particular set of
crimes as “violent,” and different states often classify similar crimes differently.
Such “interstate statutory differences do not control the meaning of the Fourth
Amendment.” (Robinson, supra, 47 Cal.4th at p. 1123; cf. Virginia v. Moore
(2008) 553 U.S. 164, 176.) Nor does there exist a body of federal constitutional
law that might supply a relevant classification. (Cf., e.g., Atwater v. City of Lago
Vista (2001) 532 U.S. 318, 345 [declining to adopt a classification of “violent”
misdemeanors for Fourth Amendment purposes].
16
But in any event, even if the federal Constitution permitted states to
mandate collection of DNA samples only from persons arrested for felonies
classified as particularly serious or violent, defendant in this case was arrested for
felony arson in violation of Penal Code section 451, subdivision (d), a crime that is
classified as a “serious felony” under California law. (See Pen. Code, § 1192.7,
subd. (c)(14).) Defendant does not dispute the characterization.
Defendant’s argument would thus seem to amount to a request that we
reverse his conviction based not on any defect in the DNA Act’s application to his
case, but based on the Act’s potential application to other, differently situated
individuals. This is more than he may reasonably ask. 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.” (In re Cregler (1961) 56 Cal.2d 308, 313 (Cregler).) This
rule does have limited exceptions—most commonly invoked in free speech
cases—but none is relevant here. (Sabri v. United States (2004) 541 U.S. 600,
609–610 (Sabri); see, e.g., United States v. Mitchell (3d Cir. 2011) 652 F.3d 387,
415, fn. 26 (en banc) (Mitchell) [felony arrestee could not raise a successful facial
challenge to federal DNA collection law on the ground that it applies to
misdemeanor arrestees and is therefore overbroad]; cf. Rakas v. Illinois (1978) 439
U.S. 128, 133–134 [“ ‘Fourth Amendment rights are personal rights which, like
some other constitutional rights, may not be vicariously asserted.’ ”].) Outside of
these limited exceptions, and “absent a good reason, we do not extend an
invitation to bring overbreadth claims.” (Sabri, at p. 610.) No such reason
appears in this case.
Defendant next points out that the Maryland law upheld in King permitted
collection of a DNA sample only of arrestees “charged” with qualifying crimes
(Md. Code Ann., Pub. Saf., § 2-504(b)(1)), and prohibited officials from testing
the sample or loading the profile into the statewide database until after the arrestee
17
was arraigned and a judicial officer determined that the arrest was based on
probable cause (id., § 2-504(d)(1)). The DNA Act, by contrast, allows collection
“immediately following arrest” and provides that the samples shall “immediately”
be forwarded to the laboratory for analysis. (Pen. Code, § 295(i)(1)(C).
Defendant argues that these differences in the time prescribed for the collection
and testing of DNA samples tip the balance against their constitutionality.
There are two elements to this argument: one concerning the timing of the
collection, the other concerning the timing of analysis. As to the timing of
collection, there is no reason to believe that the differences between California’s
law and Maryland’s change the Fourth Amendment balance applicable in this
case. Although the text of the DNA Act does purport to authorize the collection
“immediately following arrest,” that provision was not invoked and is not at issue
here. Rather, jail officials in this case sought to collect a sample of defendant’s
DNA on booking, as part of the routine collection of identifying information. And
King, once again, upheld DNA collection as a “legitimate police booking
procedure,” like fingerprinting or photographing, that enables jail officials to know
whom they have taken into custody. (King, supra, 569 U.S. at p. 466, italics
added.) King itself involved a sample collected on booking. (Id. at p. 441; see
King v. State (Md. 2012) 42 A.3d 549, 557.)3 And there are practical reasons for
3
In his brief, defendant read the Maryland law’s reference to arrestees
“charged” with certain offenses as prohibiting the collection of DNA until a
prosecutor decides whether to file qualifying charges following arrest. (See Md.
Code. Ann., Pub. Saf., § 2-504(b)(1).) But the Attorney General notes that in
Maryland, charges are often filed by the police officer, rather than the prosecutor.
(Md. Rules, rule 4-211(b)(2).) The high court’s opinion in King did not address
the meaning or significance of this provision of the Maryland law; its analysis was
focused not on the nature of the charging decision, but on the fact of an arrest
supported by probable cause.
18
collecting the required DNA sample at the time of booking, along with taking
photographs and fingerprints. Among other things, if the arrestee is released
pending adjudication, officials may not have another opportunity. (See Mario W.
v. Kaipio (Ariz. 2012) 281 P.3d 476, 482 [“If . . . a juvenile is released pending
adjudication and later fails to appear for trial without previously having submitted
a buccal sample, the opportunity to obtain a DNA profile for identification
purposes will have been lost. The State has an important interest in locating an
absconding juvenile and, perhaps years after charges were filed, ascertaining that
the person located is the one previously charged.”].
As to the second point, defendant argues that it is unreasonable for officials
to proceed to test the DNA sample once collected, and to upload an arrestee’s
profile to the state DNA databank, before a judicial officer has found probable
cause to support the arrest or before charges have been filed. Defendant argues
that it is this step—the testing and recording of the arrestee’s DNA identification
profile—that “represents the far greater intrusion upon privacy.” And a provision
like Maryland’s ensures that this step is not taken before there is third party
confirmation that the defendant was validly arrested and that he or she will face
legal process for a felony offense.
19
Defendant, who has never contested that his arrest was based on probable
cause,4 made no similar argument in the trial court; he argued that it was
impermissible to require him to submit a DNA sample at all, not that it was
unreasonable to do so without a guarantee that the analysis of the sample would be
delayed until probable cause was confirmed by a neutral magistrate or charges
were filed. We observe, however, that the reasoning of King itself does not lend
substantial support to the argument that such a guarantee is required under these
circumstances. Again, 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.
(King, supra, 569 U.S. at pp. 465–466.) That interest is one that attaches as soon
as the suspect is “formally processed into police custody.” (Id. at pp. 449–450.
The court attached no significance to the timing provision of the Maryland statute
on which defendant relies. The point was, rather, raised primarily in the dissenting
opinion, which argued that delaying DNA testing until arraignment undermined
the argument that the requirement qualifies as a reasonable booking procedure.
(Id. at pp. 471–472 (dis. opn. of Scalia, J.).
Defendant contends that the timing of analysis nevertheless ought to figure
in the equation because, as a practical matter, officers ordinarily will not receive a
4
On the contrary, it appears that defendant acknowledged from the outset
that there was probable cause to arrest him. While being placed in a patrol car at
the scene, defendant spontaneously stated, “I didn’t think it would work” and
noted that the officer who initially observed him in the act had “[p]erfect timing,
him coming up the hill like that.” According to his own testimony at trial,
moreover, he anticipated he would be charged for his acts. Justified as his protest
was, he testified, he knew “how the legal system works” and that “[t]hey [we]re
going to regard this as an illegal act.”
20
suspect’s DNA profile until well after booking in any event. When officers make
a warrantless arrest and take a suspect into custody, due process ordinarily
requires that a judicial officer make a probable cause determination promptly after
booking—ordinarily within 48 hours—to justify continued pretrial detention.
(County of Riverside v. McLaughlin (1991) 500 U.S. 44, 58–59.) (No such
requirement applies if the arrestee is released from detention. (In re Walters
(1975) 15 Cal.3d 738, 743; see also Pen. Code, § 849, subd. (a).)) By contrast,
defendant notes, in California it has typically taken much longer—at the time of
briefing, an average of 30 days—to generate an identification profile from an
arrestee’s DNA sample. (See King, supra, 569 U.S. at p. 454 [citing the same
statistic].) Defendant argues that in view of the delays already associated with
sample processing, it would pose a negligible burden for officials to postpone
processing until a judge has determined whether probable cause exists and a
prosecutor has decided whether to file charges.
Defendant’s point about average processing times is not one that escaped
the high court’s notice in King; as noted, the court itself cited the same numbers.
The court nevertheless concluded that DNA identification is a reasonable booking
procedure, without suggesting that its reasonableness might vary depending on
average processing times. The reasons for this are not difficult to discern. For one
thing, individual DNA samples may be processed more quickly than average: The
court noted the states’ submission that some DNA identification samples in
California have been processed significantly more quickly than others. (King,
supra, 569 U.S. at p. 454.) Moreover, as is often the case in areas of fast-moving
technological developments, average processing times are liable to change; the
high court had been told that the technological capacity already exists to analyze
DNA samples in a matter of minutes, rather than days or weeks, and that
technology is likely to become more widespread in the near future. (Id. at p. 460;
21
see Rapid DNA Act of 2017, Pub.L. No. 115-50 (Aug. 18, 2017) 131 Stat. 1001;
see also 42 U.S.C. §§ 14131(a), 14135a.) The court “[took] account of these
technical advances” (King, at p. 460) in evaluating the reasonableness of DNA
collection and testing as a means of “prompt identification” (id. at p. 459). Given
all this, we cannot proceed on the assumption that a rule delaying the collection or
processing of samples until after a judicial probable cause finding or arraignment
would pose no meaningful risk of interference with the central interest identified
in King: the accurate identification of arrestees who are taken into police custody.
Defendant argues, not unreasonably, that we should decide this case in light
of the conditions that prevailed at the time he refused to provide the sample, not in
light of technological advances that might make it possible to process DNA
samples more quickly in the future. But considering the matter from this vantage
point does not help defendant’s case. If we assume that defendant’s sample would
not have been processed significantly faster than the average of 30 days, as
defendant would have us do, then we would also be bound to conclude that
defendant would have, de facto, received the very delay he seeks: The record
indicates that a judge found probable cause to support defendant’s felony arrest a
little more than 24 hours after he was arrested, and he was arraigned within 48
hours, as the law requires. In a world of 30-day processing times, defendant’s
sample would not have been processed, or his DNA profile uploaded to the state
DNA databank, before these events occurred.
Although defendant himself was charged and convicted, we acknowledge
defendant’s concern about the collection of DNA samples from other individuals
who are booked into custody but who ultimately will never be charged with a
qualifying crime, or against whom qualifying charges will ultimately be dismissed.
Voters responded to that concern by providing for a particular remedy—
expungement of the DNA sample and associated records—when the suspect is
22
cleared of qualifying charges. As King illustrates, voters could also have chosen
to require that all sample processing be postponed until after arraignment,
regardless of technological capacity to proceed more quickly. But given the basic
logic of King, we cannot say that the choice voters made is one that undermines
the reasonableness of the search in this case.
Justice Liu suggests that for purposes of deciding reasonableness of an
arrestee’s search, an arrest should not be considered valid until there has been a
judicial determination of its validity. (Dis. opn. of Liu, J., post, at pp. 1–2.) There
is, however, a meaningful difference between the requirement of a valid arrest and
a requirement that a neutral magistrate make such a determination. For example,
in the related context of searches incident to arrest—where a valid arrest is also
essential—there is no such preapproval requirement. (See United States v.
Robinson (1973) 414 U.S. 218, 219–224 [approving search of the person at time of
valid arrest made without warrant]; People v. Brisendine (1975) 13 Cal.3d 528,
532–534 (Brisendine) [approving search for weapons upon a warrantless arrest,
under circumstances requiring prolonged proximity to arrestees].) The arrestee
may have an exclusionary remedy if the arrest is later determined to have been
illegal (see 6 LaFave, Search and Seizure (5th ed. 2012) § 11.4(d), pp. 407–408),
but the search’s reasonableness does not depend on prior judicial authorization for
the arrest. Here, there is no dispute that the arrest was valid. To the extent the
dissenting opinions argue for a prophylactic rule delaying the analysis of an
arrestee’s DNA sample until probable cause for the arrest has been judicially
determined, we again note that defendant raised no such argument in the trial court
and we decline to decide the constitutional necessity of such a rule in a case in
which probable cause has never been contested.
This brings us to defendant’s final point, concerning the adequacy of the
DNA Act’s expungement procedures. As defendant notes, under the Maryland
23
law at issue in King, an arrestee who is later exonerated is entitled to automatic
destruction of his or her DNA sample and associated records. (King, supra, 569
U.S. at pp. 443–444.) Under the DNA Act, by contrast, an exonerated arrestee
ordinarily must file a written request for expungement of DNA records. (Pen.
Code, § 299, subds. (a) & (b).)5 Provisions of the Act can be read to suggest,
moreover, that a trial court may not act on such a request before 180 days have
elapsed, and the court has unreviewable discretion to grant or deny the request.
(Id., subd. (c)(1) & (c)(2)(D).) Defendant argues that these provisions, by contrast
to Maryland’s automatic destruction provisions, mean that a DNA profile can be
generated and maintained in the state database even after a suspect’s arrest has
been found to be mistaken or unlawful. What is more, he argues, the provisions
make it possible for the state to retain the DNA sample and associated records for
an extended period of time—perhaps even indefinitely—after the prosecutor has
declined to file or has dismissed charges, or after those charges have failed to yield
a conviction. In sum, defendant argues, the DNA Act’s expungement provisions
are insufficient to protect the privacy rights of felony arrestees who are later found
to have been wrongly arrested or who are cleared of wrongdoing.
King does not speak directly to the issue defendant raises concerning the
adequacy of the DNA Act’s expungement procedures. Although the high court
mentioned Maryland’s automatic destruction provisions in passing, it attached no
significance to them in its constitutional analysis. (King, supra, 569 U.S. at
pp. 443–444.) Rather, the court responded to privacy concerns about the state’s
5
A different provision of the DNA Act requires the Department of Justice
DNA Laboratory to “remove [a] suspect sample from its databank files and
databases” after two years upon confirmation that the “person is no longer a
suspect in a criminal investigation.” (Pen. Code, § 297, subd. (c)(2).) The parties
have not addressed the relevance of this provision, if any.
24
processing of DNA samples by emphasizing features of the Maryland law that are
shared by California’s: namely, the analysis of a sample involves the processing
only of loci from “noncoding parts of the DNA that do not reveal the genetic traits
of the arrestee,” and the law strictly prohibits the misuse of DNA records for any
purpose other than identification. (Id. at p. 464; see id. at p. 465; Pen. Code,
§ 299.5.
The court’s failure to mention the expungement provisions does not
necessarily mean that they are irrelevant to the constitutional analysis, however.
To be sure, the retention of an arrestee’s fingerprints, photographs, and other
identifying information in law enforcement files generally has not been thought to
raise constitutional concerns, even though the arrestee may later be exonerated.
(Loder v. Municipal Court (1976) 17 Cal.3d 859, 864–869; People v. McInnis
(1972) 6 Cal.3d 821, 826.) But the question defendant raises is whether, given the
uniquely sensitive nature of DNA information, a different rule should apply here:
one that calls not only for expungement, but for automatic expungement of an
arrestee’s DNA sample, DNA identification profile, or both after an arrest has
been shown to be invalid or after an arrestee is cleared of charges, or both.
Whether the Fourth Amendment requires this added protection for the
wrongly arrested or exonerated is, however, a question we must leave for another
day, because defendant in this case is neither. Defendant has not been found to
have been wrongly arrested; indeed, he has never challenged the validity of his
arrest. Nor was he cleared of the charges that formed the basis for his arrest; he
was promptly charged with that offense and was later convicted as charged.
Although our dissenting colleagues argue otherwise (dis. opn. of Liu, J., post, at
pp. 7–8; dis. opn of Cuéllar, J., post, at pp. 25–26), we are aware of no support for
the proposition that an arrestee who, like defendant, has never claimed to be
entitled to expungement, is nevertheless entitled to challenge the adequacy of
25
expungement procedures. (See Mitchell, supra, 652 F.3d at p. 412 [arrestee who
had never provided a sample and who had never sought expungement was “not in
a position” to challenge the adequacy of the expungement provisions of the federal
DNA collection statute].
Again, 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.” (Cregler, supra, 56
Cal.2d at p. 313.) Further, “a court will not consider every conceivable situation
which might arise under the language of the statute and will not consider the
question of constitutionality with reference to hypothetical situations.” (Ibid.) By
focusing on the facts presented by the case before us, we avoid premature
judgment of constitutional questions, including “ ‘premature interpretatio[n] of
statutes’ on the basis of factually bare-bones records.” (Sabri, supra, 541 U.S. at
p. 609, quoting United States v. Raines (1960) 362 U.S. 17, 22.
Restraint is particularly warranted here because much of defendant’s
argument depends on assertions about the workings of the expungement
procedures that are as yet untested and unproved. The record before us reveals
nothing, for example, about how the expungement provisions operate in a case in
which a judge finds no probable cause to support the arrest. The statute does make
clear that a person who is found to have been wrongly arrested is entitled to
expungement: it says that “a person who has no past or present qualifying
offense” may make a request for expungement if, among other things, no
qualifying charges have been filed “within the applicable period allowed by law”
or if qualifying charges “have been dismissed prior to adjudication by a trier of
fact.” (Pen. Code, § 299, subd. (b)(1).) But the requirement that the arrestee make
a written request with supporting documentation from the court or the district
attorney, for example, appears to be aimed at dispelling any doubt as to whether
qualifying charges may still be filed against the arrestee. (Id., § 299, subd.
26
(c)(2)(B).) It is unclear whether or how this requirement would apply in a case in
which a judge has ruled from the outset that the defendant’s felony arrest was
unsupported by probable cause.
Much the same is true about defendant’s concern that the state may
indefinitely retain DNA information of a person who, though arrested, has been
found innocent of any crime. Defendant contends that a prosecutor may
unilaterally block expungement by objecting for any reason, and a trial court
likewise may deny expungement in its unconstrained discretion. It is not clear that
he is correct on either score. It is true that the DNA Act describes a process that
permits prosecutors to file objections to expungement (Pen. Code, § 299, subd.
(c)(2)(D)), and speaks of trial court “discretion” to grant or deny an expungement
request (id., § 299, subd. (c)(1)). But the DNA Act also provides that if there is no
other legal basis for retaining the information, an exonerated arrestee “shall have
his or her DNA specimen and sample destroyed and searchable database profile
expunged from the databank program.” (Pen. Code, § 299, subd. (a), italics
added.) Federal law likewise provides that a state participating in CODIS “shall
promptly expunge” from that database the DNA profile of any person who is later
cleared of qualifying charges. (34 U.S.C. § 12592(d)(2)(A).) And to the extent
there is any question about the proper interpretation of the statute, it might well be
resolved by reference to the usual rule that a statute will be interpreted to avoid
serious constitutional questions if such an interpretation is fairly possible. (See,
e.g., People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) Whether legislation may
deprive the appellate courts of all modes of reviewing a trial court’s order, as
section 299, subdivision (c)(1) might appear to do, poses such a question. (See
Cal. Const., art VI, §§ 10, 11 [jurisdiction of appellate courts over appeals and
writs]; Leone v. Medical Board (2000) 22 Cal.4th 660, 668 [Legislature may not
27
restrict appellate review in a manner that would substantially impair courts’
constitutional powers].
Nor does a trial court order appear to be a necessary prerequisite to
expungement. As the Attorney General points out, the California Department of
Justice has created a “streamlined” process whereby eligible individuals may seek
expungement directly from the Department, using a publicly available two-page
form.6 Defendant does not question the Department’s authority to create this
alternative, “streamlined” expungement process. (See Pen. Code, § 295, subd.
(h)(1) [authorizing the Department to adopt policies and enact regulations for the
implementation of the DNA Act].) And although he notes that a trial court might
have to get involved if the Department denies a valid expungement request, he
points to no case in which such a thing has occurred.
Because defendant never sought expungement—and indeed, has never
claimed to be entitled to seek expungement, since he was both charged with and
ultimately convicted of a qualifying crime—we have no occasion here to resolve
any questions that might arise about the implementation of the expungement
provisions in other cases. It suffices to note that many of defendant’s assertions
about the operation of the expungement process are, at this point, necessarily
speculative. This court ordinarily does not issue constitutional rulings based on
speculation, and we will not do so here. (See, e.g., Cregler, supra, 56 Cal.2d at
6
California DOJ, Streamlined DNA Expungement Application Form,
<http://ag.ca.gov/bfs/pdf/expungement_app.pdf > [as of Apr. 2, 2018]. As the
Attorney General notes, the Frequently Asked Questions page on the DOJ website
indicates that the expedited expungement process is generally completed within
two to four weeks. (See <https://oag.ca.gov/bfs/prop69/faqs#retention> [as of
Apr. 2, 2018].
28
p. 313; Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d
158, 172.)7
In short, although the DNA Act differs in some ways from the Maryland
law at issue in King, none of those differences affects the Fourth Amendment
analysis in the specific case before us. King holds that a cheek swab is a
reasonable booking procedure for individuals who are arrested for serious
offenses, and defendant was asked to provide a cheek swab upon being booked
after a valid arrest for a serious offense. Defendant’s conviction for failing to
submit a sample of his DNA therefore did not violate the Fourth Amendment to
the federal Constitution.
7
As Justice Cuéllar notes in his dissent (post, pp. 29–30), after we granted
review in this case, the Legislature enacted versions of Penal Code sections 298
and 299 to become operative were this court to affirm the Court of Appeal’s
decision below. These include provisions for more automatic expungement and
for delay in analyzing samples until probable cause for the arrest has been
judicially determined. (Stats. 2015, ch. 487, §§ 3, 5.
It goes without saying that our job is not to decide which version of the
statute we prefer, but instead to determine whether the DNA Act, as enacted by
California voters, is constitutional as applied to defendant in the case before us.
The legislative amendments themselves make this clear. The Legislature did not
attempt to substitute these statutory provisions for those the voters approved;
whether it could do so, consistent with its role under Proposition 69, is therefore a
question not presented here. (See Prop. 69, supra, § V, subd. (c) [amendments
may be made only “to enhance the use of DNA identification evidence for the
purpose of accurate and expeditious crime-solving and exonerating the
innocent”].) The Legislature instead enacted the provisions as a kind of fallback
measure, providing that the amendments would come into force only if we affirm
the lower court’s ruling as to the statutory sections’ unconstitutionality as applied
in this case (presumably on a basis that would not equally undermine the validity
of the Legislature’s conditional amendments). We accordingly focus solely on the
law as the voters enacted it, as applied to the facts of the case before us.
29
III.
Defendant argues, and the Court of Appeal concluded on remand from
King, that even if requiring him to furnish a DNA sample as part of the booking
process did not violate the Fourth Amendment, it violated the parallel prohibition
on unreasonable searches and seizures in article I, section 13 of the California
Constitution.
We evaluate the constitutionality of searches and seizures under our state
Constitution by employing the same mode of analysis that the high court applied
in King, supra, 569 U.S 435. That is, we determine whether the intrusion on the
defendant’s expectation of privacy is unreasonable by applying “a general
balancing test ‘weighing the gravity of the governmental interest or public concern
served and the degree to which the [challenged government conduct] advances
that concern against the intrusiveness of the interference with individual liberty.’ ”
(Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 29–30, quoting
Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1338.) Defendant does not argue
otherwise. He instead argues that we should reject King’s balancing of these
interests as a matter of state constitutional law.
In addressing defendant’s argument, we reaffirm several long-established
principles. First, the California Constitution is, and has always been, “a document
of independent force” (American Academy of Pediatrics v. Lungren (1997) 16
Cal.4th 307, 325) that sets forth rights that are in no way “dependent on those
guaranteed by the United States Constitution” (Cal. Const., art. I, § 24). “As an
historical matter, article I and its Declaration of Rights was viewed as the only
available protection for our citizens charged with crimes, because the federal
Constitution and its Bill of Rights was initially deemed to apply only to the
conduct of the federal government.” (Raven v. Deukmejian (1990) 52 Cal.3d 336,
352–353.) While the setting changed following ratification of the Fourteenth
30
Amendment to the United States Constitution and the selective incorporation of
the Bill of Rights, it remains a basic tenet of our system of federalism that “the
nation as a whole is composed of distinct geographical and political entities bound
together by a fundamental federal law but nonetheless independently responsible
for safeguarding the rights of their citizens.” (Brisendine, supra, 13 Cal.3d at
p. 550.
Second, although decisions of the United States Supreme Court interpreting
parallel federal text are not binding, we have said they are “entitled to respectful
consideration.” (People v. Teresinski (1982) 30 Cal.3d 822, 836 (Teresinski); cf.,
e.g., Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 [“[C]ogent reasons must
exist before a state court in construing a provision of the state Constitution will
depart from the construction placed by the Supreme Court of the United States on
a similar provision in the federal Constitution.”].) This approach reflects the
“respect due to the decision of that high tribunal, the fact that to it has been
committed, by the consent of the states, the ultimate vindication of liberty and
property against arbitrary and unconstitutional state legislation.” (People v. Budd
(1889) 117 N.Y. 1, 13, affd. Budd v. New York (1892) 143 U.S. 517, cited in
Gabrielli, supra, 12 Cal.2d at p. 89.
We have had several occasions to address the application of these principles
in the context of search and seizure law in particular. Today, following a 1982
state constitutional amendment passed by voter initiative, the United States
Supreme Court’s interpretation of the Fourth Amendment is often not only
persuasive, but controlling in criminal cases: Under Proposition 8, the “Right to
Truth-in-Evidence” (Cal. Const., art. I, § 28, subd. (f)(2)), added by voters in
1982, the exclusionary rule does not apply to a search or seizure that violates
article I, section 13, but does not violate the Fourth Amendment, and the fruits of
such a search or seizure are admissible in a criminal trial. This means that in
31
California criminal proceedings, issues related to the suppression of evidence
seized by police are, in effect, governed by federal constitutional standards. (E.g.,
People v. Lenart (2004) 32 Cal.4th 1107, 1118; see In re Lance W. (1985) 37
Cal.3d 873, 891 [upholding Proposition 8].) But when voters later enacted an
initiative measure that would have eliminated this court’s ability to independently
construe the California Constitution’s provisions granting certain rights to criminal
defendants, including the right to be free of unreasonable searches and seizures,
we explained that such far-reaching change could be accomplished only by
constitutional revision: While our law has long reflected a “general principle or
policy of deference to United States Supreme Court decisions,” the initiative
measure could not “mandate the state courts’ blind obedience thereto, despite
‘cogent reasons,’ ‘independent state interests,’ or ‘strong countervailing
circumstances’ that might lead our courts to construe similar state constitutional
language differently from the federal approach.” (Raven v. Deukmejian, supra, 52
Cal.3d at p. 353.)8
Even before the passage of Proposition 8, this court ordinarily resolved
questions about the legality of searches and seizures by construing the Fourth
Amendment and article I, section 13 in tandem. (E.g., People v. Triggs (1973) 8
8
Our colleagues in dissent would go further; they argue that we should take
no special account of the federal high court’s interpretation of language common
to the United States and California Constitutions. (See dis. opn. of Liu, J., post,
pp. 11–12; dis. opn. of Cuéllar, J., post, pp. 4–5.) But as Raven v. Deukmejian
made clear in rejecting an effort to eliminate our independent interpretive
authority altogether, the approach we have described is neither a relic of a long-
distant past nor a recent innovation. We will accordingly follow this court’s long-
standing policy and practice of giving meaningful and careful consideration to
federal high court decisions construing parallel constitutional text, without in any
way denying or denigrating our power and duty to depart from those decisions
when sufficient reasons appear.
32
Cal.3d 884, 892, fn. 5 [“At least since the advent of Wolf v. Colorado (1949) 338
U.S. 25, we have treated the law under article I, section 19 [now section 13], of
our state Constitution as ‘substantively equivalent’ to the Supreme Court’s
construction of the Fourth Amendment.”].) On various occasions, however, this
court has also decided questions pertaining to the legality of searches and seizures
solely under article I, section 13, when the United States Supreme Court had not
yet decided the parallel question under the Fourth Amendment. (See, e.g., People
v. Ruggles (1985) 39 Cal.3d at 1, 11 [“Rather than await more definitive guidance
[from the United States Supreme Court], we turn to article I, section 13 of the
California Constitution”]; People v. Cook (1985) 41 Cal.3d 373, 376, fn. 1
[similar].) And on some of those occasions, the high court later spoke to the
question and reached a contrary conclusion under the Fourth Amendment. We
have then been confronted with the question whether to adhere to our own
precedent construing article I, section 13, as a matter of stare decisis, or instead to
abandon our precedent in favor of the high court’s decision. (See Brisendine,
supra, 13 Cal.3d at p. 552 [adhering to People v. Superior Court (Simon) (1972) 7
Cal.3d 202, notwithstanding the United States Supreme Court’s later decision in
United States v. Robinson, supra, 414 U.S. 218]; People v. Cook (1978) 22 Cal.3d
67, 88 [adhering to the rule of Theodor v. Superior Court (1972) 8 Cal.3d 77,
notwithstanding the United States Supreme Court’s later decision in Franks v.
Delaware (1978) 438 U.S. 154].
Here, in contrast to many of our earlier cases, the United States Supreme
Court has resolved the question before us under the Fourth Amendment. The
question is thus not whether we should abandon our own contrary precedent, and
any reliance interests that may have grown up around it, but whether we should
33
reject the high court’s Fourth Amendment guidance.9 Confronted with a similar
situation in Teresinski, in which this court’s Fourth Amendment ruling had been
overturned by the United States Supreme Court in United States v. Crews (1980
445 U.S. 463, we declined an invitation to reach the same conclusion based on
article I, section 13, finding “no reasons . . . to justify rejecting the teaching of the
Supreme Court” on the issue presented. (Teresinski, supra, 30 Cal.3d at p. 836.
The question is whether adequate reasons are present here to conclude, despite
King, that California voters exceeded constitutional bounds in mandating the
collection of DNA sample from an individual arrested and booked on probable
cause to believe he had committed a serious offense.
Defendant argues there are several such reasons. To begin with, he argues
that King should be rejected because its central premise is faulty. King concluded
that 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. Defendant argues, however, that arrestee DNA
information is not used to determine an arrestee’s identity, but “solely for
investigation of possible other crimes.” Echoing the dissenting opinion in King
(supra, 569 U.S. at pp. 467–469 (dis. opn. of Scalia, J.)), defendant argues that
9
The dissenting opinions ask why “the order in which this court decides an
issue vis-à-vis the high court” should be of any significance. (Dis. opn. of Cuéllar,
J., post, at p. 8; see also dis. opn. of Liu, J., post, at p. 12.) In reviewing this
court’s past practice, our answer is straightforward: in instances where this court
had previously decided an issue, that decision carried the persuasive force of stare
decisis we always accord our own precedents, which had then to be balanced
against the persuasive force of the contrary United States Supreme Court decision.
In instances where we had not previously decided an issue, no similar
counterbalance existed.
34
gathering DNA information for this purpose is unreasonable in the absence of a
warrant or individualized suspicion.
In evaluating defendant’s argument, we do not write on a blank slate. As
noted, in Robinson, supra, 47 Cal.4th 1104, this court upheld against a Fourth
Amendment challenge the practice of mandatory collection of DNA samples from
convicted felons. This court so held precisely because of the capacity of DNA
sampling to provide accurate and reliable identification of criminal offenders.
This court recognized that DNA samples, like fingerprints, may also be used to
establish a suspect’s involvement in crimes. (Id. at pp. 1120–1121.) Indeed, the
DNA sample taken from the defendant in Robinson was used for that purpose, and
led to his prosecution for an unrelated crime. But this court concluded that the
search was reasonable because DNA testing is, like fingerprinting, a means of
identification, and “individuals in lawful custody cannot claim privacy in their
identification.” (Id. at p. 1121.
Robinson, like King, recognized that suspects can change their names,
assume a false identity using forged documents, change their hair color, have
tattoos removed, have plastic surgery, and change their eye color with contact
lenses. But it is impossible to alter a DNA profile. Thus, as Robinson explained,
“ ‘for purposes of identifying “a particular person” as the defendant, a DNA
profile is arguably the most discrete, exclusive means of personal identification
possible.’ ” (Robinson, supra, 47 Cal.4th at p. 1134, quoting State v. Dabney
(Wis. 2003) 663 N.W.2d 366, 372.) “ ‘ “A genetic code describes a person with
far greater precision than a physical description or a name.” ’ ” (Ibid.) For that
reason, this court upheld an arrest warrant describing the arrestee by only his DNA
profile. (Robinson, at p. 1137.
California law, like federal law, has also recognized that identification of
arrestees is not an end in itself; rather, the primary purpose of identification is to
35
facilitate the gathering of information about the arrestee contained in police
records, which in turn informs decisions about how to proceed with the arrestee.
(Loder v. Municipal Court, supra, 17 Cal.3d at pp. 866–867 [upholding limited
retention and use of arrest records, including fingerprints and other identifying
information].) Our law is thus consistent with the high court’s observation that
“[t]he task of identification necessarily entails searching public and police records
based on the identifying information provided by the arrestee to see what is
already known about him.” (King, supra, 569 U.S. at p. 451.) “In this respect the
use of DNA for identification is no different than matching an arrestee’s face to a
wanted poster of a previously unidentified suspect; or matching tattoos to known
gang symbols to reveal a criminal affiliation; or matching the arrestee’s
fingerprints to those recovered from a crime scene. . . . [DNA testing] uses a
different form of identification than a name or fingerprint, but its function is the
same.” (Ibid.
As counsel confirmed at oral argument, defendant does not dispute that it is
reasonable for officers to check an arrestee’s fingerprints against “electronic
databases of known criminals and unsolved crimes.” (King, supra, 569 U.S. at
p. 451.) This, he says, is because fingerprints are capable of serving a “genuine”
identification purpose, while a DNA profile is not. To be sure, a DNA profile is
not, at least under present technological conditions, generated immediately or
nearly immediately, in the manner of fingerprints. But as the high court noted in
King, the immediate availability of fingerprints for identification purposes is also a
relatively recent development; before the FBI introduced its electronic fingerprint
database in 1999, processing fingerprint submissions often took “ ‘weeks or
months.’ ” (Id. at p. 459.) Such delays have not been thought to undermine the
basic identification purposes of the information. (See, e.g., United States v. Kelly
(2d Cir. 1932) 55 F.2d 67, 69, 70 [“Finger printing seems to be no more than an
36
extension of methods of identification long used in dealing with persons under
arrest for real or supposed violations . . . .” “It can really be objected to only
because it may furnish strong evidence of a man’s guilt.”].
As the high court explained in King, “[t]he question of how long it takes to
process identifying information obtained from a valid search goes only to the
efficacy of the search for its purpose of prompt identification, not the
constitutionality of the search.” (King, supra, 569 U.S. at p. 459.) Even if a DNA
profile is not generated until weeks or months after the initial booking, the
information it yields about the arrestee and his criminal history can still have an
“important bearing” on the processing of the arrestee—whether, for example, to
revisit an initial determination to release the arrestee or to impose new release
conditions. (Id. at p. 460.) Information obtained after initial booking may also
influence the jailer’s decision about where to house the arrestee.
To the extent defendant means to argue that fingerprinting simply makes
DNA identification superfluous, we have no adequate basis for concluding that is
so. Fingerprinting and DNA identification are not simply substitutes for one
another. (Robinson, supra, 47 Cal.4th at p. 1134.) Fingerprinting alone would not
have revealed, for example, that there was an outstanding warrant for the
defendant’s arrest in Robinson. And as the court in King noted, “[i]n considering
laws to require collecting DNA from arrestees, government agencies around the
Nation found evidence of numerous cases in which felony arrestees would have
been identified as violent through DNA identification matching them to previous
crimes but who later committed additional crimes because such identification was
not used to detain them.” (King, supra, 569 U.S. at p. 454.
Defendant also argues that we should reject King as a matter of state
constitutional law because King “ignored the highly sensitive nature of the genetic
data contained in the collected DNA,” and “did not address what federal circuit
37
courts have recognized as the more significant privacy implications posed by the
state’s subsequent analysis and retention of the sensitive information contained in
DNA.” The criticism is misplaced. Contrary to defendant’s characterization, the
court in King recognized that the privacy interests at stake extended beyond the
“minimally invasive” physical collection of the DNA sample by buccal swab.
(King, supra, 569 U.S. at p. 460.) As noted above, the court acknowledged
concerns about the genetic information contained in the collected DNA and its
subsequent analysis. It explained that CODIS testing is designed to reveal nothing
more about the arrestee than his or her identity, and that state law forbade the use
of DNA information for nonidentification purposes. (Id. at pp. 464–465.) But the
court acknowledged that if scientific advances or other developments mean that
CODIS testing will now lead to discovery of personal medical information, a new
Fourth Amendment analysis will be required. (Ibid.
We, too, are mindful of the heightened privacy interests in the sensitive
information that can be extracted from a person’s DNA. These interests implicate
not only article I, section 13, but the privacy rights enjoyed by all Californians
under the explicit protection of article I, section 1 of the California Constitution.
(See, e.g., Lewis v. Superior Court (2017) 3 Cal.5th 561, 569.) But our cases have
also recognized that safeguards against the wrongful use or disclosure of sensitive
information may minimize the privacy intrusion when the government accesses
personal information, including sensitive medical information. (E.g., id. at
pp. 576–577 [upholding the constitutionality of government access to prescription
drug record database under article I, section 1 of the California Constitution].
Here, the DNA Act makes the misuse of a DNA sample a felony, punishable by
years of imprisonment and criminal fines. (Pen. Code, § 299.5.) These strong
sanctions substantially reduce the likelihood of an unjustified intrusion on the
suspect’s privacy. Like the King court, we acknowledge the possibility that
38
technological change might alter the privacy interests at stake, requiring a new
constitutional analysis. But we are no more inclined than that court to decide
cases on the basis of speculation about future developments that may not come to
pass.
Defendant next argues that this court should reject King because article I,
section 13, gives arrested suspects greater privacy rights than they possess under
the Fourth Amendment. Defendant points to decisions of this court holding that
article I, section 13 forbids officers from conducting so-called “ ‘accelerated
booking search[es]’ ” in the field at the time of arrest (People v. Laiwa (1983) 34
Cal.3d 711, 726–728); from conducting full body searches of arrested suspects
before determining whether they will be cited and released without being booked
(People v. Longwill (1975) 14 Cal.3d 943, 951–952 (Longwill)); and from
conducting searches of personal effects incident to a citation or arrest for a traffic
violation, absent reason to believe the effects contain weapons or contraband
(Brisendine, supra, 13 Cal.3d at pp. 548–552; People v. Norman (1975) 14 Cal.3d
929, 938). In the latter cases, we rejected the rule of United States v. Robinson,
supra, 414 U.S. 218, which, as we described it in Longwill, permits “full body
searches of all individuals subjected to custodial arrest,” as well as their effects,
“regardless of the offense, and regardless of whether the individual is ultimately to
be incarcerated.” (Longwill, supra, 14 Cal.3d at p. 951.
But what motivated these decisions was not principally a difference in
opinion with the federal courts about the scope of legitimate privacy rights of
persons subject to custodial arrest. California law and federal law alike recognize
that an arrestee has reduced privacy interests upon being taken into police custody,
but that reduced privacy interests do not mean zero privacy interests—which is to
say, “[n]ot every search ‘is acceptable solely because a person is in custody.’ ”
(Riley v. California, supra, 134 S.Ct. at p. 2488, quoting King, supra, 569 U.S. at
39
p. 463.) Rather, the cases on which defendant relies all turn on a different
evaluation of legitimate law enforcement needs when arresting suspects in the
field. As relevant here, this court concluded that the rationales for conducting full
booking searches before a defendant enters custody do not apply to all persons
cited or arrested in the field, since “it is factually demonstrable that a substantial
number of the arrestees will never see the inside of a jail cell.” (Longwill, supra,
14 Cal.3d at p. 951.) In each case, we explained, “the same factors are operative:
the potential harm to the officer if the arrestee is armed justifies a limited weapons
search, but a full booking search is ‘inappropriate in the context of an arrestee who
will never be subjected to that process.’ ” (Id. at p. 950, quoting Brisendine,
supra, 13 Cal.3d at p. 547.
The question before us, by contrast, does not concern the constitutionality
of a booking search conducted immediately upon arrest, but a booking search
conducted at the time of booking, and justified by an interest in accurate
identification that applies to all persons who are taken into police custody
following a valid arrest for a serious offense. Cases concluding that full booking
searches are inappropriate for arrestees who will never be booked into jail are thus
of limited relevance here.
Finally, defendant argues that even if the differences between the DNA Act
and the law at issue in King do not alter the Fourth Amendment analysis, they
should alter the state constitutional analysis. For reasons already given, these
differences do not change our assessment of the constitutionality of the DNA Act
as applied in defendant’s case. Officials asked defendant for a DNA sample upon
booking, after he was arrested on probable cause for a serious offense, and as he
was entering pretrial detention. Under the circumstances before us, the
requirement was not unreasonable.
40
IV.
Our holding today is limited. The sole question before us is whether it was
reasonable, under either the Fourth Amendment or article I, section 13 of the
California Constitution, to require the defendant in this case to swab his cheek as
part of a routine jail booking procedure following a valid arrest for felony arson.
Because we conclude the requirement was reasonable as applied to defendant, we
hold he is subject to the statutory penalties prescribed in Penal Code section 298.1.
Although defendant was arrested on probable cause for felony arson and
was ultimately convicted of that offense, our dissenting colleagues argue that we
should reach beyond the facts of the case before us to strike down some or all of
the DNA Act’s provisions as they apply to other categories of arrestees. They
argue that we should consider defendant’s reasonable expectations about the use
and retention of his DNA sample at the time of booking, and we should do so from
behind a “veil of ignorance,” treating defendant as though his circumstances were
“indistinguishable” from a suspect who is wrongly or pretextually arrested, or
against whom charges are never brought, or who is ultimately acquitted of any
charged offenses. (Dis. opn. of Cuéllar, J., post, at p. 28; see also dis. opn. of Liu,
J., post, at pp. 1–2.
In assessing whether the demand for a sample of an arrestee’s DNA was
reasonable under article I, section 13, we agree that it may be appropriate to
consider not only the minimal nature of the physical intrusion associated with a
buccal swab, but the arrestee’s reasonable expectations about what would happen
to the sample after collection. But in so analyzing the arrestee’s choice, we cannot
ignore the safeguards built into the DNA Act: the limited nature of the
information stored in databases on an arrestee (specifically, a numerical profile
describing noncoding parts of the arrestee’s DNA); the legal protections against
possible misuse of the profile or the sample (including felony sanctions for
41
knowing improper use or dissemination); and the availability of procedures for
removing the profile from the database and destroying the sample should the basis
for the arrestee’s inclusion dissipate. We have no record before us to show that
these legal protections would have been violated or proved unworkable had
defendant chosen to comply with the requirement to provide a DNA sample on
booking. And we note, as a purely practical matter, whatever apprehension
defendant might have had about the adequacy of the Act’s protections for
individuals who are found to have been wrongly arrested, for example, would
certainly have been mitigated by his own knowledge of the circumstances of his
arrest. (Here, the record shows that defendant knew from the outset that he had
been apprehended in the act of setting fire to the tires of a police car and
anticipated that he would be prosecuted for his acts, to which he would later
confess at trial. (See fn. 4, ante.)) To be sure, as explained above, defendant was
entitled to the full scope of constitutional protection against unreasonable
searches, despite his arrest on evident probable cause. And had he later found
himself in a position to seek expungement of his sample and profile and found the
statutory procedures inadequate, he would have been entitled to challenge the
retention of his information on that basis.
Not all arrestees will be comparably situated to the defendant in this case.
An individual who, unlike defendant, is arrested in the absence of probable cause
might reasonably anticipate that charges will never be brought and any attempted
prosecution will inevitably fail.10 And such an arrestee may, at least in some
10
Justice Liu (dis. opn., post, at p. 9) invokes language from Florida v.
Bostick (1991) 501 U.S. 429, 437–438, which decided a question of detention in
the context of random police requests to search bus passengers’ luggage. The
point of the cited passage of Bostick is that a person’s knowledge he or she has
something to hide does not convert a consensual encounter into a detention. The
(footnote continued on next page)
42
circumstances, have a valid as-applied challenge to the adequacy of the DNA
Act’s expungement procedures or to application of the Act’s other operative
provisions, in addition to the other remedies available for unlawful arrest. (Cf.
People v. McInnis, supra, 6 Cal.3d at p. 826 [photograph taken pursuant to an
illegal arrest could be shown to a witness asked to identify the perpetrator of a
subsequent crime where there was no evidence the police had “ ‘exploited’ ” the
earlier illegal arrest].) We note that a group of plaintiffs in federal court have
already challenged the law’s application to those who are never charged with any
crime. (See Haskell v. Harris (filed July 18, 2014, N.D.Cal. Civ. Case No. C 09-
04779 CRB, docket #146), Motion to Create Subclasses, p. 1 [seeking certification
of subclass consisting of arrestees compelled to submit samples under DNA Act
“unless they are actually charged with a felony offense”].) We of course take no
view on the merits of any such challenges. We only note them for purposes of
contrast with this case, in which defendant bases his challenge to his misdemeanor
refusal conviction on the potential for constitutional deprivation under
circumstances that are not, in fact, present here.
To entertain defendant’s arguments here would convert our decision in this
case, which concerns only the validity of defendant’s conviction for violation of
Penal Code section 298.1, into the equivalent of facial constitutional review of the
DNA Act as it might be applied to other arrestees. But the DNA Act itself
instructs that the validity of the Act as applied to defendant does not depend on its
(footnote continued from previous page
passage tells us nothing about how to judge the depth of privacy intrusion
involved in a postarrest demand for a DNA sample based not on the collection of
the sample itself, but based on the likelihood of future use or retention of the
sample under various conditions that did not, in fact, obtain in this case.
43
validity as it might apply to others. (Prop. 69, supra, § V, subd. (b); see p. 6,
ante.) And our jurisprudence likewise counsels us to follow a narrower course.
While “passing on the validity of a law wholesale may be efficient in the abstract,”
the law teaches that we should ordinarily focus on the circumstances before us in
determining whether the work of a coequal branch of government may stand or
must fall. (Sabri, supra, 541 U.S. at p. 609.) We accordingly abide by what has
been called a “ ‘cardinal principle of judicial restraint—if it is not necessary to
decide more, it is necessary not to decide more.’ ” (People v. Contreras (2018) 4
Cal.5th 349, 381.
In sum: Defendant raises a number of concerns about the potential
application of the DNA Act in other cases involving other, differently situated
arrestees. He also raises concerns that changes in technology might open up new
prospects for using his DNA samples and profiles in ways that are uniquely
invasive of personal privacy. We are mindful of these concerns, and we recognize
that the DNA Act may raise additional constitutional questions that will require
resolution in other cases.
In addressing the concerns defendant has raised here, however, we are also
mindful of our role in reviewing a law duly enacted by California voters in the
exercise of their initiative power. 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.) 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 those at hand.” (Sabri, supra, 541 U.S. at
p. 609; see Cregler, supra, 56 Cal.2d at p. 313.
44
The judgment of the Court of Appeal is reversed.
KRUGER, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
45
DISSENTING OPINION BY LIU, J.
According to today’s opinion, “[t]he sole question before us is whether it was
reasonable, under either the Fourth Amendment or article I, section 13 of the California
Constitution, to require the defendant in this case to swab his cheek as part of a routine
jail booking procedure following a valid arrest for felony arson.” (Maj. opn., ante, at
p. 41, italics added.) This statement of the issue is misleading.
The DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act
requires collection of DNA from all adult felony arrestees “immediately following arrest”
and requires samples to be “forwarded immediately” to the laboratory for analysis. (Pen.
Code, § 295(i)(1)(A), (C).) Buza was arrested on January 21, 2009. At booking a few
hours later, a police officer requested a cheek swab from Buza under penalty of law.
Buza refused. It was not until the next day, January 22, 2009, that a judge found
probable cause to believe Buza committed arson. On January 23, 2009, the district
attorney filed a complaint charging Buza with arson and related offenses as well as
unlawful refusal to provide a DNA specimen on January 21, 2009 (id., § 298.1,
subd. (a)). The question is whether Buza can be convicted of refusing to provide his
DNA at booking prior to any judicial determination of whether he was validly arrested.
Today’s opinion does not explain why the fact that Buza was found “validly arrested on
probable cause to believe he had committed felony arson, and . . . was promptly charged
with (and ultimately convicted of) that offense” (maj. opn., ante, at p. 15) has any bearing
on whether it was lawful to require him to provide his DNA before any of those
determinations were made.
The court says that a “valid arrest” in this context does not require “a judicial
determination of its validity.” (Maj. opn., ante, at p. 23.) But this assertion, even if true,
does not disturb the main premise of the question presented: For purposes of
constitutional analysis, Buza is no different than any felony arrestee who has not been
charged, convicted, or found by a neutral magistrate to be lawfully detained. This point
is critical because it brings into focus the startling breadth of DNA collection and
retention authorized by the statute. This is not a scheme carefully calibrated to identify
felony offenders. Instead, it can be fairly described as a biological dragnet. As explained
below, and for the reasons stated in Justice Cuéllar’s dissent, the DNA Act violates the
prohibition on unreasonable searches and seizures in the California Constitution.
According to the Office of the Attorney General, there are 200,000 to 300,000
felony arrests in California every year. (Cal. Dept. of Justice, Crime in California 2016
(Aug. 17, 2017) p. 49.) But not all arrests end in convictions; far from it. Here are the
Attorney General’s data on dispositions of adult felony arrests for each year since 2009,
when the DNA Act started requiring all such arrestees to provide DNA samples
immediately upon arrest:
Law
Complaints
Dismissed,
Total
enforcement
Convicted
denied
acquitted
releases
#
#
%
#
%
#
%
#
%
2016
207,022
7,058
3.4
36,588
17.7
25,961
12.5
137,415
66.4
2015
242,460
7,537
3.1
38,733
16.0
33,908
14.0
162,282
66.9
2014
315,782
10,227
3.2
48,235
15.3
39,632
12.6
217,688
68.9
2013
305,503
10,525
3.4
45,273
14.8
36,315
11.9
213,390
69.8
2012
295,465
9,572
3.2
48,029
16.3
35,451
12.0
202,413
68.5
2011
292,231
9,780
3.3
45,988
15.7
40,642
13.9
195,821
67.0
2010
298,647
9,980
3.3
46,054
15.4
40,793
13.7
201,820
67.6
2009
306,170
9,894
3.2
43,317
14.1
45,000
14.7
207,959
67.9
Total 2,263,280 74,573
3.3
352,217
15.6
297,702
13.2
1,538,788
68.0
2
(Id. at table 37, p. 49.) These data show that from 2009 to 2016, nearly one in five felony
arrests did not result in prosecution, and almost one in three — a total of 724,492 arrests
— did not result in a conviction.
Each of those arrests triggered the requirement to provide a DNA sample. Yet 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, § 299, subds. (a), (b).) The Judicial Council of California,
pursuant to its reporting obligations under Penal Code section 1170.45, has reported that
from 2009 to 2016, between 15 and 20 percent of felony arrestees had no criminal record,
between 14 and 19 percent had one or more prior prison commitments, and around 66
percent had a criminal record with no prior prison commitment (so-called
“ ‘miscellaneous’ ” records), a category that presumably includes arrestees with only
misdemeanor convictions for which DNA collection is not authorized. (See, e.g., Jud.
Council of Cal., Disposition of Criminal Cases According to the Race and Ethnicity of
the Defendant (Sept. 20, 2017) p. 15 (Disposition of Criminal Cases) [15 percent of
felony arrestees in 2016 had no criminal record, 19 percent had one or more prior prison
commitments, 66 percent had miscellaneous records]; Jud. Council of Cal., Disposition
of Criminal Cases According to the Race and Ethnicity of the Defendant (2011) [20
percent of felony arrestees in 2009 had no criminal record, 14 percent had one or more
prior prison commitments, 66 percent had miscellaneous records].) The percentage of
felony arrestees with no prior convictions or only misdemeanor convictions is likely
higher among those who are not charged or not convicted than among felony arrestees
overall. Thus, even assuming that a substantial portion of the 724,492 arrests from 2009
to 2016 that resulted in no conviction involved persons with a prior (or subsequent
3
qualifying offense, there are tens if not hundreds of thousands of individuals who have
been required to provide DNA samples that the state has no legal basis for retaining.
The statute sets forth a process for expungement, but this process is not adequate
to allay constitutional concerns. In contrast to the automatic expungement provisions of
the state law at issue in Maryland v. King (2013) 569 U.S. 435, 443–444 (King),
California’s DNA Act provides that a person seeking expungement “must send a copy of
his or her request to the trial court of the county where the arrest occurred, or that entered
the conviction or rendered disposition in the case, to the DNA Laboratory of the
Department of Justice, and to the prosecuting attorney of the county in which he or she
was arrested or[] convicted[] or adjudicated, with proof of service on all parties.” (Pen.
Code, § 299, subd. (c)(1).) The Department of Justice “shall destroy” the DNA
specimen, sample, and searchable profile “upon receipt of a court order that verifies the
applicant has made the necessary showing at a noticed hearing, and that includes all of
the following: [¶] (A) The written request for expungement pursuant to this section. [¶]
(B) A certified copy of the court order reversing and dismissing the conviction or case, or
a letter from the district attorney certifying that no accusatory pleading has been filed or
the charges which served as the basis for collecting a DNA specimen and sample have
been dismissed prior to adjudication by a trier of fact, the defendant has been found
factually innocent, the defendant has been found not guilty, the defendant has been
acquitted of the underlying offense, or the underlying conviction has been reversed and
the case dismissed. [¶] (C) Proof of written notice to the prosecuting attorney and the
Department of Justice that expungement has been requested. [¶] (D) A court order
verifying that no retrial or appeal of the case is pending, that it has been at least 180 days
since the defendant or minor has notified the prosecuting attorney and the Department of
Justice of the expungement request, and that the court has not received an objection from
the Department of Justice or the prosecuting attorney.” (Id., subd. (c)(2).
4
The extensive documentation, notice to multiple parties, judicial hearing, and
additional steps required for expungement place a significant burden on eligible persons,
assuming they are even aware of the process. In addition, although the statute says a
person whose arrest resulted in no charge or conviction “shall have his or her DNA
specimen and sample destroyed and searchable database profile expunged” if the state
has “no legal basis for retaining” them (Pen. Code, § 299, subd. (a)), the statute also says:
“The court has the discretion to grant or deny the request for expungement. The denial of
a request for expungement is a nonappealable order and shall not be reviewed by petition
for writ.” (Id., § 299, subd. (c)(1).) It is not clear what “discretion” the court may
exercise in deciding whether to grant or deny a request, or what remedy is available if the
court denies a valid request. Further, it is not clear what consequence ensues if the state
does not comply with a court order granting a request for expungement. (Id., § 299,
subd. (d) [“Any identification, warrant, probable cause to arrest, or arrest based upon a
databank or database match is not invalidated due to a failure to expunge or a delay in
expunging records.”].
The Department of Justice has sought to expedite the process by creating a
“Streamlined DNA Expungement Application Form.” (Cal. Dept. of Justice, Proposition
69 (DNA) <https://oag.ca.gov/bfs/prop69> [as of Apr. 2, 2018] [“Remove Your DNA
Sample from the DNA Database”]; cf. 34 U.S.C. § 12592(d)(2) [requiring states to
“promptly expunge” the DNA analysis of qualified persons as a condition of state access
to the DNA index maintained by the FBI].) But the reality is that few DNA samples,
once collected, are ever removed.
The Department of Justice DNA Laboratory publishes monthly reports on the
number of samples added or removed from its inventory as well as historical totals since
the DNA collection program began in 2004. As of February 2018, the DNA Laboratory
had received 2,792,083 DNA samples and had removed 44,314 samples, or 1.6 percent,
since the program began. (Cal. Dept. of Justice, Proposition 69 (DNA
5
<https://oag.ca.gov/bfs/prop69> [February statistics as of Mar. 28, 2018] [“DNA
Laboratory Monthly Statistics, pdf”].) As of December 2008, the DNA Laboratory had
removed 22,269 DNA samples from its inventory since the program began; these
removals include “Expunged, Removed or Failed Samples, or where a New Sample was
Requested.” (Appellees’ Response to Appellants’ Request for Judicial Notice;
Supplemental Request for Judicial Notice and Supporting Declaration of Daniel J.
Powell, Haskell v. Harris (filed Sept. 20, 2012, 9th Cir. case No. 10-15152) docket #103,
Ex. A, p. 24; see Haskell v. Harris (9th Cir. 2014) 745 F.3d 1269 (en banc).) Even if we
assume that all reported removals are expungements, the total number of expungements
from January 2009, when the current DNA law went into effect, until February 2018
would be only 22,045 — i.e., the difference between 44,314 (the total number of
removals through February 2018) and 22,269 (the total number of removals through
December 2008). This is a small fraction of the large population of individuals since
2009 whose felony arrests have resulted in no charge or conviction, and who have no
other basis for inclusion in the state DNA database. It is questionable whether the vast
majority of people entitled to expungement even know about the process much less know
how to navigate it. Indeed, we have no indication that any responsible official is ever
required to inform an arrestee about the expungement process.
The state’s retention of DNA is troubling not only because of its sheer magnitude
but also because it predictably burdens certain groups. African Americans, who are 6.5
percent of California’s population, made up 20.3 percent of adult felony arrestees in
2016. (U.S. Census Bureau, QuickFacts: California (July 1, 2016
<https://www.census.gov/quickfacts/CA> [as of Apr. 2, 2018]; Crime in California 2016,
supra, at p. 36.) Yet they comprised 24.3 percent of felony arrestees who were released
by law enforcement or the prosecuting attorney in 2016 before any court disposition.
(Disposition of Criminal Cases, supra, at p. 10.) Non-Hispanic whites, by contrast,
comprised 31.2 percent of felony arrestees but only 27.0 percent of felony arrestees
6
released by law enforcement or the prosecuting attorney. (Crime in California 2016,
supra, at p. 36; Disposition of Criminal Cases, supra, at p. 10.) The fact that felony
arrests of African Americans disproportionately result in no charges or dropped charges
means that African Americans are disproportionately represented among the thousands of
DNA profiles that the state has no legal basis for retaining.
Penal Code section 297, subdivision (c)(2) provides an alternative route for
expungement: “The law enforcement investigating agency submitting a specimen,
sample, or print impression to the DNA Laboratory of the Department of Justice or law
enforcement crime laboratory pursuant to this section shall inform the Department of
Justice DNA Laboratory within two years whether the person remains a suspect in a
criminal investigation. Upon written notification from a law enforcement agency that a
person is no longer a suspect in a criminal investigation, the Department of Justice DNA
Laboratory shall remove the suspect sample from its databank files and databases.
However, any identification, warrant, arrest, or prosecution based upon a databank or
database match shall not be invalidated or dismissed due to a failure to purge or delay in
purging records.” But it is not clear how this process, which relies on the initiative of law
enforcement, is monitored or enforced; the language of the statute, like Penal Code
section 299, expressly contemplates “failure” or “delay” by responsible officials. In any
event, this expungement process may take up to two years after a person’s DNA is sent to
the laboratory, during which time the sample remains available to law enforcement even
if the person was never charged or convicted of a crime.
The court says it need not consider the adequacy of the expungement process
because Buza was “charged with and ultimately convicted of a qualifying crime.” (Maj.
opn., ante, at p. 28.) But the question is whether it was constitutional to require Buza to
provide his DNA after his arrest on January 21, 2009 — before he was charged or
convicted. In answering this question, it certainly matters how his DNA would be
analyzed, used, and retained, and we must address these considerations from the vantage
7
point that existed at the time Buza was required to provide his DNA. (See People v. Gale
(1973) 9 Cal.3d 788, 795 [“ ‘The question of the reasonableness of the officers’ conduct
is determined on the basis of the information possessed by the officer at the time a
decision to act is made.’ ”].) We cannot ignore the (in)adequacy of expungement — the
statute’s only safeguard against overbroad retention — based on the fortuity that Buza
turned out to be guilty. (See McDonald v. United States (1948) 335 U.S. 451, 453 [the
“guarantee of protection against unreasonable searches and seizures extends to the
innocent and guilty alike”].
In addition, the court says collecting DNA from an arrestee before a judge has
determined the validity of the arrest is analogous to a search incident to arrest, “where a
valid arrest is also essential [and] there is no such preapproval requirement.” (Maj. opn.,
ante, at p. 23.) But a search incident to arrest is justified and limited by the immediate
need to “protect[] arresting officers and safeguard[] any evidence of the offense of arrest
that an arrestee might conceal or destroy.” (Arizona v. Gant (2009) 556 U.S. 332, 339.
DNA collection upon arrest does not serve any similarly pressing purpose. (Dis. opn. of
Cuéllar, J., post, at pp. 13–14 [it takes around 30 days to generate an identification profile
from an arrestee’s DNA sample].) Moreover, when an arrest is later found invalid by a
neutral magistrate, a search incident to the arrest is deemed unlawful, and the evidence
obtained is subject to suppression. (See People v. Macabeo (2016) 1 Cal.5th 1206,
1219.) The DNA Act does not deem unlawful the collection of DNA pursuant to an
arrest that is later found invalid; such DNA may be retained and used by law enforcement
so long as there is no request for expungement.
The court further contends that “whatever apprehension defendant might have had
about the adequacy of the Act’s protections for individuals who are found to have been
wrongly arrested, for example, would certainly have been mitigated by his own
knowledge of the circumstances of his arrest. (Here, the record shows that defendant
knew from the outset that he had been apprehended in the act of setting fire to the tires of
8
a police car and anticipated that he would be prosecuted for his acts, to which he would
later confess at trial. (See fn. 4, ante.)) . . . . [¶] Not all arrestees will be comparably
situated to the defendant in this case. An individual who, unlike defendant, is arrested in
the absence of probable cause might reasonably anticipate that charges will never be
brought and any attempted prosecution will inevitably fail.” (Maj. opn., ante, at p. 42,
fn. omitted.) This seems to suggest that arrestees who know they are guilty are entitled to
lesser constitutional protection than arrestees who believe they are innocent. Such
reasoning contravenes the fundamental principle that “the ‘reasonable person’ test [in
search and seizure analysis] presupposes an innocent person. See [Florida v. Royer
(1983) 460 U.S. 491, 519, fn. 4] (Blackmun, J., dissenting) (‘The fact that [respondent]
knew the search was likely to turn up contraband is of course irrelevant; the potential
intrusiveness of the officers’ conduct must be judged from the viewpoint of an innocent
person in [his] position’). Accord, [Michigan v. Chesternut (1988) 486 U.S. 567, 574]
(‘This “reasonable person” standard . . . ensures that the scope of Fourth Amendment
protection does not vary with the state of mind of the particular individual being
approached’).” (Florida v. Bostick (1991) 501 U.S. 429, 438.) If we are going to make
the constitutional analysis turn on whether the defendant “knew from the outset” that he
was guilty, then we might as well dispense with much of seizure and seizure law. (See
People v. Schmitz (2012) 55 Cal.4th 909, 947 (conc. & dis. opn. of Liu, J.) [search and
seizure doctrine “is built on cases involving guilty people”].
I have no doubt that law enforcement is aided by the collection and retention of
massive numbers of DNA profiles, whether those profiles are used to confirm a person’s
identity, to facilitate access to criminal history or other information about a person, or to
help solve unsolved crimes. But if those interests are enough to justify the collection and
retention of DNA from persons who are arrested but not convicted, not charged, or not
even found to be lawfully detained so long as they do not seek expungement, then it is
not that far a step for the state to collect and retain DNA from law-abiding people in
9
general, including anyone who “applies for a driver’s license” or “attends a public
school.” (King, supra, 569 U.S. at p. 482 (dis. opn. of Scalia, J.).) Such broad-based
policies would similarly aid law enforcement while having the virtue of being less
discriminatory in their effects.
Indeed, the court’s analogy to fingerprinting, a less invasive and less powerful
technology, should give us pause. (Maj. opn., ante, at pp. 35–37; see dis. opn. of Cuéllar,
J., post, at pp. 19–22.) State law already requires individuals to provide a fingerprint in
order to get a driver’s license (Veh. Code, § 12800, subd. (c)), to become a school teacher
(Ed. Code, § 44340), to be a professional engineer (Cal. Code Regs., tit. 16, § 420.1), to
be a practicing attorney (Bus. & Prof. Code, § 6054, subd. (b)), or to join many other
occupations (id., § 144 [requiring “a full set of fingerprints for purposes of conducting
criminal history record checks” from applicants to 29 state licensing boards, including
nurses, pharmacists, physicians, court reporters, funeral directors, guide dog instructors,
contractors, and accountants]). These requirements serve important public safety and law
enforcement purposes. But if DNA matching is constitutionally justified by its
unparalleled efficacy in serving the “ ‘same’ ” identification “ ‘function’ ” as
fingerprinting (maj. opn., ante, at p. 36, quoting King, supra, 569 U.S. at p. 451), then it
is not clear what constitutional principle stands in the way of requiring a DNA sample in
every context where the law now requires a fingerprint. (See King, at p. 451 [“the only
difference between DNA analysis and the accepted use of fingerprint databases is the
unparalleled accuracy DNA provides”].) One need not be a diehard civil libertarian to
have serious qualms about where all of this may lead.
I conclude with a few words about the court’s approach to state constitutional
analysis against the backdrop of King. Today’s opinion affirms that “the California
Constitution is, and has always been, ‘a document of independent force’ [citation] that
sets forth rights that are in no way ‘dependent on those guaranteed by the United States
10
Constitution’ (Cal. Const., art. I, § 24).” (Maj. opn., ante, at p. 30.) And the court is
correct that “although decisions of the United States Supreme Court interpreting parallel
federal text are not binding, we have said they are ‘entitled to respectful consideration.’ ”
(Id. at p. 31.) But the court errs in framing the inquiry as “whether adequate reasons are
present here to conclude, despite King,” that the DNA Act is unconstitutional. (Id. at
p. 34.) In analyzing the state constitutional issue, the court takes King as the starting
point and asks “whether we should reject the high court’s Fourth Amendment guidance.”
(Id. at pp. 33–34, fn. omitted.) In so doing, the court appears to accord King “a
presumption of correctness that has no sound basis in our federal system.” (Liu, State
Constitutions and the Protection of Individual Rights: A Reappraisal (2017) 92 N.Y.U.
L.Rev. 1307, 1314.
“Just as the Supreme Court, when interpreting a provision of the Federal
Constitution, does not accord a presumption of correctness to any state’s interpretation of
an analogous state constitutional provision or even to an interpretation adopted by a
majority of states, there is no reason why a state court, when interpreting a provision of
its state constitution, should accord a presumption of correctness to the Supreme Court’s
interpretation of an analogous federal constitutional provision. State courts should and
often do give respectful consideration to relevant Supreme Court decisions, just as they
often give respectful consideration to relevant decisions of sister states. And state courts
may often be persuaded that the Supreme Court’s approach is correct and worthy of
adoption, just as they may often be persuaded by a majority view among state high
courts. But the crucial point is that state courts, as the ultimate arbiters of state law, have
the prerogative and duty to interpret their state constitutions independently.” (Liu, supra,
92 N.Y.U. L.Rev. at pp. 1314–1315.
As Justice Cuéllar notes, today’s opinion provides no convincing rationale for why
our analytical approach to a state constitutional issue should depend on “the order in
which this court decides an issue vis-à-vis the high court.” (Dis. opn. of Cuéllar, J., post,
11
at p. 8.) The court’s response is that “in instances where this court had previously
decided an issue, that decision carried the persuasive force of stare decisis we always
accord our own precedents, which had then to be balanced against the persuasive force of
the contrary United States Supreme Court decision. In instances where we had not
previously decided an issue, no similar counterbalance existed.” (Maj. opn., ante, at
p. 34, fn. 9.) But this statement of the obvious misses the point. It does not explain why
our approach should be different (1) when we consider a state constitutional issue of first
impression on which the high court has spoken under federal law, as compared to (2
when we consider a state constitutional issue of first impression on which the high court
has not spoken under federal law. To be sure, in scenario (1) we should give respectful
consideration to the views of the high court, as well as the views of other state courts that
have decided the issue under their states’ laws. But our duty to interpret the California
Constitution independently is no different in scenario (1) than in scenario (2). We may
decide, in our independent judgment, that the views of the high court should be followed.
But that is different from the mode of analysis in today’s opinion, which accords a
presumption of correctness to the high court’s decision in King and then asks whether
there are “sufficient reasons” to depart from King. (Id. at p. 32, fn. 8.
Moreover, the court fundamentally missteps in attributing its deferential reading of
King to “ ‘the fact that to [the high court] has been committed, by the consent of the
states, the ultimate vindication of liberty and property against arbitrary and
unconstitutional state legislation.’ ” (Maj. opn., ante, at p. 31.) It is of course true that
the United States Supreme Court serves as a backstop against state infringements on
constitutional rights, and when the high court issues a federal constitutional ruling, state
courts “shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” (U.S. Const., art. VI, cl. 2.) But that is not a reason for state
courts to treat the floor of constitutional rights under federal law as a presumptive ceiling
on constitutional rights under state law. Doing so runs counter to the basic precept that
12
“ ‘ “federalism secures to citizens the liberties that derive from the diffusion of sovereign
power.” ’ ” (Bond v. United States (2011) 564 U.S. 211, 221.) “The Framers concluded
that allocation of powers between the National Government and the States enhances
freedom” (ibid.), and a crucial feature of this freedom-enhancing allocation of powers is
judicial federalism: “state courts no less than federal are and ought to be the guardians of
our liberties” (Brennan, State Constitutions and the Protection of Individual Rights
(1977) 90 Harv. L.Rev. 489, 491). “State courts interpreting state law remain particularly
well situated to enforce individual rights against the States. Institutional constraints, it
has been observed, may limit the ability of [the United States Supreme] Court to enforce
the federal constitutional guarantees. Sager, Fair Measure: The Legal Status of
Underenforced Constitutional Norms, 91 Harv.L.Rev. 1212, 1217–1218 (1978). Prime
among the institutional constraints, [the United States Supreme] Court is reluctant to
intrude too deeply into areas traditionally regulated by the States. This aspect of
federalism does not touch or concern state courts interpreting state law.” (Arizona v.
Evans (1995) 514 U.S. 1, 30–31 (dis. opn. of Ginsburg, J.).) I do not see how deferring
to high court decisions under federal law when we construe parallel provisions of state
law serves the basic purposes of federalism, and the court has no answer on this point.
Notwithstanding today’s opinion, this court is no stranger to the importance of
judicial federalism. In People v. Cahan (1955) 44 Cal.2d 434, we adopted the
exclusionary rule for violations of the state constitutional prohibition on unreasonable
searches and seizures, declining to follow the high court’s refusal to adopt a federal
exclusionary rule in Wolf v. Colorado (1949) 338 U.S. 25. In People v. Wheeler (1978
22 Cal.3d 258, we held that a prosecutor’s exercise of a racially motivated peremptory
strike in an individual case violates the state constitutional right to be tried by a fair and
impartial jury, declining to follow the contrary federal constitutional rule set forth in
Swain v. Alabama (1965) 380 U.S. 202. And in In re Marriage Cases (2008) 43 Cal.4th
757, we held that laws denying same-sex couples the right to marry violate equal
13
protection under the state constitution, even though the only high court authority on point
at the time, Baker v. Nelson (1972) 409 U.S. 810, had dismissed a similar appeal for want
of a substantial federal question.
In each of these instances, we interpreted the guarantees of our state constitution
without according any deference or presumption of correctness to high court precedent.
And on each of these issues, the high court eventually overruled its precedent and
adopted as a matter of federal law the rule we had adopted as a matter of state law. (See
Mapp v. Ohio (1961) 367 U.S. 643, 651–653 [overruling Wolf and citing Cahan]; Batson
v. Kentucky (1986) 476 U.S. 79, 82–82 & fn. 1 (1986) [overruling Swain and citing
Wheeler]; Obergefell v. Hodges (2015) 576 U.S. __, __, __ [135 S.Ct. 2584, 2605, 2610]
[overruling Baker and citing In re Marriage Cases].) These examples show how the
exercise of independent judgment by state courts in our system of judicial federalism
provides a crucial safeguard for constitutional rights.
Instead of looking to these examples, today’s opinion cites Gabrielli v.
Knickerbocker (1938) 12 Cal.2d 85, which rejected a state constitutional challenge to a
law requiring schoolchildren to salute and pledge allegiance to the flag. (Maj. opn., ante,
at p. 31.) I would not rely on such dubious precedent. Whatever may be said about the
merits of the issue, the court’s analysis in Gabrielli consists of little more than uncritical
acceptance of United States Supreme Court decisions that had rejected similar claims
under the federal Constitution. (See Gabrielli, at p. 89 [“[C]ogent reasons must exist
before a state court in construing a provision of the state Constitution will depart from the
construction placed by the Supreme Court of the United States on a similar provision in
the federal Constitution.”], quoted in maj. opn., ante, at p. 31.) Five years later, the high
court overruled its precedent and decided the issue the other way in West Virginia State
Board of Education v. Barnette (1943) 319 U.S. 624.
In sum, we should not indulge any suggestion that the job of protecting individual
rights in our federal system belongs primarily to the United States Supreme Court or that
14
the high court is invariably better positioned than state supreme courts to discharge that
critical function. Because I do not agree with the court’s analysis of the state
constitutional question presented or its judgment upholding Buza’s conviction for
refusing to provide a DNA sample just hours after his arrest, I respectfully dissent.
Having concluded that Buza’s conviction for refusing to comply with the DNA Act is
invalid under the California Constitution, I express no view on whether it is also invalid
under the Fourth Amendment.
LIU, J.
WE CONCUR:
CUÉLLAR, J.
PERLUSS, J.*
* Presiding Justice of the Court of Appeal, Second Appellate District, Division Seven,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
15
DISSENTING OPINION BY CUÉLLAR, J.
In California people are protected not only by federal constitutional guarantees
against unreasonable searches or seizures, but by state constitutional provisions
governing privacy and prohibiting arbitrary coercion. These protections require
courts to distinguish between routine lawful procedures, such as those governing
collection of biological samples from convicts, and arbitrary commands purporting to
force people who have not been convicted of anything to surrender their most private
information. (See Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct. 2473,
2488] (Riley) [“Not every search ‘is acceptable solely because a person is in
custody.’ ”]; White v. Davis (1975) 13 Cal.3d 757, 766 (White) [“The inherent
legitimacy of the police ‘intelligence gathering’ function does not grant the police the
unbridled power to pursue that function by any and all means. In this realm, as in all
others, the permissible limits of governmental action are circumscribed by the federal
Bill of Rights and the comparable protections of our state Constitution.”].) Yet the
majority today sanctions the collection and analysis of DNA samples from all adults
arrested on felony charges –– fully one-third of all arrestees –– regardless of whether
those individuals will ever be charged with a crime or, if charged, ever convicted. As
Justice Liu explains in more detail, over half of these individuals are released before a
judicial determination of probable cause. But at whatever point the arrestees are
released, their DNA sample stays with the government until the expungement process,
which burdens individuals and is contingent rather than automatic, runs its course if it
ever does.
For all these individuals, the majority provides no protection –– except to
say that if they are exonerated, they may file written requests for the expungement
of their DNA records. In so holding, the majority sidesteps the problems
associated with the collection and expungement procedures of Proposition 69, the
DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act or the
Act). It contends that the scope of the legitimate privacy rights of persons arrested
is no different under our constitution than under the Fourth Amendment to the
federal Constitution and, by implication, that our own constitution plays no role in
determining whether the rights of a California citizen subjected to a search of his
person and collection of his DNA have been violated. I cannot agree.
Our state Constitution provides heightened protections for the privacy
rights of individuals, including arrestees. Those protections do not vanish merely
because someone is arrested. An arrest itself requires probable cause –– but such
cause, however probable, is a far cry from a conviction. Indeed, the underlying
logic of our system of criminal investigation and enforcement is grounded in the
distinction between the relatively low-threshold probable cause determination and
the onerous burden the government must carry to achieve a criminal conviction.
The government may justify a variety of investigative activities without probable
cause –– from routine patrol of a particular geographic location to following up on
tips or information from undercover agents. (E.g., Kyllo v. United States (2001
533 U.S. 27, 31–32 (Kyllo) [reiterating the “lawfulness of warrantless visual
surveillance of a home”]; Illinois v. Gates (1983) 462 U.S. 213, 227, 243 [holding
that a tip alone did not supply probable cause but the police follow-up
investigation of the tip did].) But when the Act compels the collection of a DNA
sample before a determination of probable cause, the government’s rationale for
seeking DNA samples for all felony arrestees is not sufficiently compelling to
outweigh the intrusion on an arrestee’s privacy that accompanies the collection
2
and storage of his personal genetic information. Though the United States
Supreme Court may have reached a different conclusion when evaluating another
state’s DNA collection statute under the federal Constitution, the role of our state
charter, the unique importance it assigns to privacy, and the differences between
the statute considered in Maryland v. King (2013) 569 U.S. 435 (King) and the
DNA Act involved here all suggest that we should find the implicated provisions
of the Act unconstitutional. So I respectfully dissent.
I.
What the parties in this case have asked us to decide is whether the DNA
Act’s provisions requiring collection from all adult felony arrestees violate article
I, section 13 of the California Constitution. So we begin by considering our state
Constitution, its relationship to the federal charter, and where the two diverge.
Construing a different statute and a different constitution, the high court in
King decided that the Fourth Amendment permits — in some instances —
collections of DNA from adults arrested for serious crimes. (King, supra, 569
U.S. at p. 446.) Although such a decision merits “respectful consideration” when
its analysis is relevant, our own constitution deserves far more than that. In
deciding whether our own state Constitution provides protection against the search
or seizure at issue, we are not only free, but obligated, to perform an independent
analysis. (People v. Teresinski (1982) 30 Cal.3d 822, 835–836 (Teresinski
[“[T]he California courts, in interpreting the Constitution of this state, are not
bound by federal precedent construing the parallel federal text. . . . [T]he state
courts, in interpreting constitutional guarantees contained in state constitutions, are
independently responsible for safeguarding the rights of their citizens.” (internal
quotation marks omitted)].) Because of our precedent interpreting the scope of
article I, section 13 and the relevance of article I, section 1’s explicit protection of
3
privacy, our constitution is more solicitous of the privacy interests of arrestees
than the Fourth Amendment.
The California Constitution is not some minor codicil to the United States
Constitution. As the majority has no choice but to acknowledge (maj. opn., ante,
at pp. 30–31), our state Constitution is a document of “independent force,” whose
meaning is to be independently distilled and propagated by this court, acting in our
authority as the state court of last resort. (Cal. Const., art. I, § 24 [making explicit
that “[r]ights guaranteed by this Constitution are not dependent on those
guaranteed by the United States Constitution”]; People v. Brisendine (1975) 13
Cal.3d 528, 549–550 (Brisendine) [“the California Constitution is, and always has
been, a document of independent force”]; People v. Longwill (1975) 14 Cal.3d
943, 951, fn. 4 (Longwill) [stating that “in the area of fundamental civil liberties,”
“we sit as a court of last resort” and “our first referent is California law and the
full panoply of rights Californians have come to expect as their due”].) In cases
where the wording of the state constitutional provision at issue parallels a phrase
in the federal Constitution, high court opinions on the subject merit respectful
consideration. (Teresinski, supra, 30 Cal.3d at p. 835.) But any such parallels in
wording must not occlude our state Constitution’s force as the basic charter of
government, which is why it is appropriate in some circumstances to take a
different course in interpreting our state Constitution. (Ibid.
We have done so in a variety of cases, where we concluded that
California’s Constitution extends protections to our citizens well beyond those the
high court has announced in the federal context. (Raven v. Deukmejian (1990) 52
Cal.3d 336, 353–354 (Raven) [listing the “numerous decisions” from this court
“interpreting the state Constitution as extending protection to our citizens beyond
the limits imposed by the high court under the federal Constitution”]; see also,
Longwill, supra, 14 Cal.3d at pp. 951–952 [holding that our state charter, unlike
4
the federal Constitution, does not allow for carte blanche “full body searches of all
individuals subjected to custodial arrest”]; People v. Maher (1976) 17 Cal.3d 196,
198–203 [concluding, as in Longwill, that “the search of [an arrestee’s] person
beyond the scope of a pat-down was unlawful under article I, section 13, of the
California Constitution”]; People v. Cook (1978) 22 Cal.3d 67, 88 [holding that
because a Supreme Court’s decision “would afford our citizens less protection
than is guaranteed to them under California law,” it is “not to be followed in
California” and that “all challenges to the veracity of a search warrant affidavit in
our courts are to be governed by [our own precedent] and article I, section 13, of
the California Constitution”]; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th
468, 476 [“the marketing order in question does not implicate any right to freedom
of speech under the First Amendment, but does indeed implicate such a right
under article I [of our state Constitution]”].
What’s more, within the specific context of search and seizure of arrestees,
we have been quite explicit in holding that article I, section 13 provides greater
protection than does the Fourth Amendment. (Brisendine, supra, 13 Cal.3d at pp.
545–546; Longwill, supra, 14 Cal.3d at p. 951 & fn. 4; People v. Norman (1975
14 Cal.3d 929, 939 (Norman); People v. Ruggles (1985) 39 Cal.3d 1, 9–11
(Ruggles); see also People v. Laiwa (1983) 34 Cal.3d 711, 727 (Laiwa).) In those
cases, we have emphasized that article I, section 13 “requires a more exacting
standard” for search and seizure cases arising in this state. (Brisendine, supra, 13
Cal.3d at p. 545.) We’ve also rejected the notion — which the United States
Supreme Court has embraced — that an individual subject to custodial arrest has
significantly diminished expectations of privacy. (Id. at p. 547 [“we cannot accept
. . . that ‘an individual lawfully subjected to a custodial arrest retains no significant
Fourth Amendment interest in the privacy of his person’ ”].) Even full custodial
arrest, booking, and incarceration do not authorize the police to search an arrestee
5
in the hope of discovering evidence of a more serious crime. (See Laiwa, supra,
34 Cal.3d at pp. 727–728.) What these authorities make clear is as simple as it is
important: individuals placed under arrest enjoy greater protection against
searches of their persons and things under our state Constitution than under the
federal counterpart.
The majority wisely avoids debating such principles. Instead, it seeks to
limit relevance of cases like Brisendine, Longwill, Norman, and Laiwa by
asserting that they all concern “the constitutionality of a [field] search conducted
immediately upon arrest,” and not, as was the case with petitioner Mark Buza, a
search “conducted at the time of booking.” (See maj. opn., ante, at p. 40.) Yet it is
far from clear why it should matter that these authorities concern searches done in
the field. We have not previously imposed limitations on the scope of the
constitutional protections involved that would categorically cleave the rights of
individuals subject to searches in the field from those being compelled to provide
their DNA at the time of booking. And existing distinctions do not detract from
the fact that — in some circumstances — California residents have more robust
rights than equivalent ones available under the federal Constitution. (Brisendine,
supra, 13 Cal.3d at pp. 550–551 [“in determining that California citizens are
entitled to greater protection under the California Constitution against
unreasonable searches and seizures than that required by the United States
Constitution, we are embarking on no revolutionary course”].) The question
facing us is whether we should extend the same greater protection to our citizens
in this situation, not whether we have done that exact thing before.1
1
I would also note that the DNA Act authorizes cheek swabs “immediately
following arrest” and thus encompasses field searches. (Pen. Code § 296.1,
subd. (a)(1)(A).
6
The majority suggests that we should not do so because the United States
Supreme Court decided King before we considered the issue. It implies that if the
Supreme Court “had not yet decided the parallel question under the Fourth
Amendment,” then we may be empowered to reach our own conclusions. (Maj.
opn., ante, at p. 33.) But because King predated our consideration, our
responsibility shifts from deciding the legality of the search under article I, Section
13 to determining whether “we should reject the high court’s Fourth Amendment
guidance.” (Id. at pp. 33–34.
Nowhere in the majority opinion is there a persuasive justification for why
the question is framed in terms of whether we should “reject” the United States
Supreme Court’s “guidance.” Of course we consider United States Supreme Court
decisions when they address the scope of a federal constitutional right analogous
to a state right, even if we are not required on federal supremacy grounds to adopt
the same approach. But unlike the majority, we treat our own precedent as worthy
of –– at least –– “meaningful and careful consideration” as well. (Maj. opn., ante,
at p. 32, fn. 8.) Our precedent makes clear that even where the relevant provision
under our state charter shares “language [in] common” with the federal
Constitution, we may interpret our constitution differently than how the high court
reads the federal Constitution. (See Am. Acad. of Pediatrics v. Lungren (1997) 16
Cal.4th 307, 326 (Lungren) [“even when the terms of the California Constitution
are textually identical to those of the federal Constitution, the proper interpretation
of the state constitutional provision is not invariably identical to the federal courts’
interpretation of the corresponding provision contained in the federal
Constitution”].) What’s more, we have said the particular provision at stake here
— article I, section 13 — affords arrestees more expansive protection than does
the Fourth Amendment. The majority relegates our decisions to the sideline in its
rush to adhere to what it calls the high court’s “guidance,” but in fact, treats as
7
controlling authority. In doing so, the majority fails to maintain fidelity to our
caselaw and Constitution.
The position the majority takes is in tension even with its own logic. There
is simply no good reason to believe that the order in which this court decides an
issue vis-à-vis the high court should determine the outcome of our deliberation, or
that we should read our prior cases as supporting some kind of ersatz presumption
that we should ration as much as possible the discussion of state constitutional
rights. The framing is inconsistent with the majority’s purported “reaffirm[ation]”
of “long-established principles” that the rights guaranteed by our state Constitution
“are in no way ‘dependent on those guaranteed by the United States
Constitution.’ ” (Maj. opn., ante, at p. 30.) If the rights of our citizens are not
dependent on the federal Constitution, then our analytical route for determining
what those rights are should not take a different course simply because the United
States Supreme Court issued an opinion before we did.
In replying to our criticism, the majority seeks its answer to the awkward
question of why temporal order matters so much for its analysis in a rationale that
it describes as “straightforward” — so straightforward, in fact, it may be captured
in two words: “stare decisis.” (Maj. opn., ante, at p. 34, fn. 9.) When we have
not spoken, says the majority, the weight of stare decisis does not exist to
counterbalance against the “force of the contrary United States Supreme Court
decision.” (Ibid.) This contention is doubly flawed. First, by positing that
California courts have not spoken, the majority wrongly implies that nothing in
our own precedent weighs as much as even a single federal court decision that’s
not binding on us. Yet as detailed in this section, any reasonable reading of our
past decisions reveals them to be enormously relevant to the question before us.
Second, how the majority decides to frame its inquiry is just as much a
problem. By asking whether we may grant our own courts a permission slip to
8
“depart” from a United States Supreme Court decision addressing a matter that is
no more than partially similar to the case before us, the majority has done more
than to adjust the weight on the state side of the jurisprudential scale relative to the
federal side. It’s dispensing with the scale altogether. Instead of weighing the
relative merits of the issue at hand according to our independent responsibility to
construe our Constitution, the majority appears to deploy words like “depart” and
“guidance” to embrace the view that we should presumptively comply with a
United States Supreme Court opinion that does not even address the precise
question before us. In this new analysis, our own authorities are emaciated in
importance by being read narrowly, such that booking searches are presumed to be
so categorically distinct from field searches that nothing meaningful can be
gleaned for this case from decisions involving the latter. Meanwhile, a far-broader
reading and presumption of validity is reserved for a non-binding United States
Supreme Court decision — even though the decision is interpreting a different
Constitution, and a different DNA collection scheme that does not come close to
applying to all felony arrestees. This position implies that the United States
Supreme Court can dictate what we do whenever we interpret an issue under the
California Constitution, despite our prior decisions supporting a contrary answer,
so long as we have not previously resolved precisely the same question.
Remarkably, this position removes both the “stare” and “decisis” from “stare
decisis” –– inverting the concept to justify departures from California decisions
governing the scope of state privacy protection.
Those decisions underscore how adopting King’s approach would be at
odds with article I, section 1 of California’s Constitution. And it would be at odds
with our case law construing that provision and emphasizing the importance of
informational and dignitary privacy interests under California law. In contrast to
its federal counterpart, the California Constitution contains an express statement
9
about the importance of personal privacy: “All people are by nature free and
independent and have inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.” (Cal. Const., art. I § 1.) True: we have
previously found that article I, section 1 does not by itself confer a privacy right
substantively different from what article I, section 13 purports to protect. (People
v. Crowson (1983) 33 Cal.3d 623, 629.) But neither have we held that this
language is devoid of meaning when considered together with that of article I,
section 13.
The reason we have not so held is because the most sensible reading of the
California Constitution would assign both importance and meaning to its mention
of personal privacy. Even if the language in article I does not create a separate
class of privacy rights, at a minimum this reference underscores how certain
infringements of personal privacy deserve heightened scrutiny in our search and
seizure analysis relative to what the federal analysis requires. Our cases
construing article I, section 1 in relation to the federal Constitution reinforce this
conclusion. What we have emphasized is that the scope of the state constitutional
right of privacy is broader than the concept of privacy the federal courts have
identified — and that this distinction may at times lead us to provide greater
protection for individuals’ privacy rights than the federal courts might. (Lungren,
supra, 16 Cal.4th at pp. 326–327 [“past California cases establish that, in many
contexts, the scope and application of the state constitutional right of privacy is
broader and more protective of privacy than the federal constitutional right of
privacy as interpreted by the federal courts”].
Our cases have described the “core value” of article I, section 1 as
protecting so-called “informational privacy,” meaning the privacy interest in
sensitive and confidential personal information. (Hill v. National Collegiate
10
Athletic Assn. (1994) 7 Cal.4th 1, 35–36 (Hill); Lungren, supra, 16 Cal.4th at p.
406.) We have found that article I, section 1 grew out of the electorate’s fears of
“increased surveillance and data collection activity in contemporary society”
(White, supra, 13 Cal.3d at p. 774), and was intended to address the potential
collection, stockpiling, and use of individuals’ most personal information in an
arbitrary and unjustified fashion. (Ballot Pamp., Gen. Elec. (Nov. 7, 1972
argument in favor of Prop. 11, p. 27 (Article I, section 1 Ballot Pamp.) [privacy
initiative targeted the “collecting and stockpiling [of] unnecessary information . . .
and misusing information gathered for one purpose in order to serve other
purposes or to embarrass”].) Article I, section 1 provides special protection for
what we have deemed “autonomy,” or dignitary, privacy, which we have
described as protecting the interest in making “personal decisions or conducting
personal activities without observation, intrusion, or interference.” (Hill, supra, 7
Cal.4th at p. 35.) We have found dignitary privacy to embrace a person’s interest
in retaining control over his or her own body and “bodily integrity.” (Lungren,
supra, 16 Cal.4th at pp. 326–327, 337.) Finally, it has not escaped our attention
that article I, section 1 addresses the unique harms that can occur when the
government intrudes on a person’s privacy. The proponents of the provision
warned of the possibility of the government assembling “personal information”
and referred specifically to the possibility that private information could be
permanently stored in government records. (Article I, section 1 Ballot Pamp.,
supra, at p. 26 [“Government agencies seem to be competing to compile the most
extensive sets of dossiers of American citizens. Computerization of records makes
it possible to create ‘cradle-to-grave’ profiles of every American.”].
Given the nature of these concerns, the machinery of the DNA Act appears
to epitomize the sort of intrusion relevant under article I, section 1. The collection
of DNA — whether it is via cheek swab or any of the other collection processes
11
the Act permits (see Pen. Code, § 298.1, subd. (b) [permitting the use of
reasonable force to collect DNA database samples]) — violates the subject’s
bodily integrity. (See Hill, supra, 7 Cal.4th at pp. 40–41 [finding that the
collection of a urine sample “impacts legally protected privacy interests”].) And
the use of that sample to create and store a DNA profile gives the government
long-term access to the subject’s genetic code — some of the most personal
information imaginable. (Id. at p. 41 [“ ‘A person’s medical profile [as revealed
by the collection and analysis of urine] is an area of privacy infinitely more
intimate, more personal in quality and nature than many areas already judicially
recognized and protected.’ ”]; Birchfield v. North Dakota (2016) 579 U.S. ___,
___–___ [136 S.Ct. 2160, 2177] (Birchfield) [noting that DNA collection and
analysis “put into the possession of law enforcement authorities a sample from
which a wealth of additional, highly personal information could potentially be
obtained”].) The DNA Act’s processes thus seem to fall close to the heart of
article I, section 1’s scope. Consequently, it is vital to consider article I, section 1
in our independent analysis of the constitutionality of the DNA Act under our state
charter.
Ultimately, the majority’s approach to constitutional federalism fails to do
justice to the importance of state constitutional rights. The majority does not
appear to reject the well-settled principle that “[t]he construction of a provision of
the California Constitution remains a matter of California law regardless of the
narrower manner in which decisions of the United States Supreme Court may
interpret provisions of the federal Constitution.” (People v. Pettingill (1978) 21
Cal.3d 231, 247–248.) Yet it ironically finds that neither our constitution nor case
law offers “adequate reasons” for us to take a fresh look at this case beyond what
it takes to be the long shadow cast by King. (Maj. opn., ante, at p. 34.
12
The path we are bound to follow is a different one. Instead of relying
primarily on King to yield a tidy solution in this case, we owe it to the citizens of
our state to perform an independent analysis to determine whether “ ‘the particular
governmental invasion of a citizen’s personal security’ ” is reasonable under the
circumstances of this case. (In re Tony C. (1978) 21 Cal.3d 888, 892.) Our
analysis shows the intrusion to be unreasonable.
II.
Once we assign proper weight and meaning to the California Constitution,
we can turn to the ultimate question in any case arising under article I, section 13:
whether the search or seizure in question is reasonable. (Ingersoll v.
Palmer (1987) 43 Cal.3d 1321, 1329 (Ingersoll); see also Brisendine, supra, 13
Cal.3d at p. 536.) At issue here is the compelled physical production of a
biological sample from someone who has not been convicted. Whether this
particular search satisfies the reasonableness standard is judged by balancing its
intrusion on the individual’s reasonable expectations of privacy against its
promotion of legitimate government interests. (People v. Robinson (2010) 47
Cal.4th 1104, 1120 (Robinson).) In this section, we examine the interests the
government says are served by the DNA Act. Ultimately, such interests either
ring hollow or prove insufficient to justify suspicionless, warrantless searches of
the type allowed by the Act.
As a threshold matter, it is questionable whether the DNA Act genuinely
furthers many of the interests the government identifies. The government must
create a DNA profile and compare it against existing profiles to obtain any of the
“identification” information it needs. The State informs us here that it takes
“around 30 days on average” to generate an identification profile from an
arrestee’s DNA sample. Yet in seeking to justify the collection of DNA, the
government points to functions — verifying identity, making bail decisions, and
13
so forth — that it must perform near to the time an arrestee is booked and
processed into jail, or shortly thereafter. In fact, the Attorney General
acknowledges that “in many cases” an arrestee is released from custody before the
State obtains his or her DNA profile. So, it seems unlikely that DNA collection
actually furthers any of these identification interests; the government even
acknowledges that it uses fingerprints, not DNA, to aid most of these decisions
and that fingerprinting “plays the lead role in confirming who a person is.” Law
enforcement officials are able to collect fingerprints promptly, compare them
against an electronic database composed of prints from various sources —
including former arrestees but also civil sources such as persons who have served
or are serving in the United States military, or have been or are employed by the
federal government — and obtain a response as to any “hits” within approximately
27 minutes. (FBI, Integrated Automated Fingerprint Identification System
archived at
<https://web.archive.org/web/20120921125141/http://www.fbi.gov/about-
us/cjis/fingerprints_biometrics/iafis/iafis/> [as of Apr. 2, 2018].) In short, it seems
that DNA collection does little to meaningfully further the State’s asserted
interests in establishing an arrestee’s identity and making various intake and
processing decisions.
The majority acknowledges that there may be a delay of “weeks or months”
between the initial booking and when a DNA profile is generated. (Maj. opn.,
ante, at pp. 36–37.) Nonetheless, it asserts that governmental interest in
identifying arrestees is unaffected because information from an DNA profile —
late as it may be in coming in — can still “influence the jailer’s decision about
where to house the arrestee,” or lead to a “revisit [of] an initial determination to
release the arrestee” or “impos[ition] [of] new release conditions.” (Id. at p. 36.
The government did not advance interests so far removed from the time of
14
booking in its own briefs. Tellingly, the majority has cited no source to suggest
that jails have the capacity to rehouse felony arrestees — those arrested for
“serious or violent” crimes (id. at p. 17) — in more secured places simply because
they are now suspected of a second crime, as revealed by a “hit” against their
DNA profile. We also question the premise that a reassessment of the initial
release decision is in itself a compelling governmental interest, especially when
we have little idea — as neither the government nor the majority has told us —
how often such a circumstance presents itself. We are asked to tip the scale in
favor of the government without knowing how many felony arrestees are released;
released with less than a full set of conditions imposed; or face a revisit of the
initial release determination when their DNA generates a hit (as opposed to an
arrest on the new crime). To expect that we would simply look past this absence
of justification is to take the idea of a blindfold on the judicial process far too
literally. (See Riley, supra, 134 S.Ct. at p. 2485 [finding an asserted government
interest inadequate when “neither the United States nor California offers evidence
to suggest that their concerns are based on actual experience”].
Instead of the supposed interests tied to the initial arrest and booking, the
most plausible justification for the present DNA collection is that it aids in
identifying arrestees who may have been perpetrators of unsolved crimes.
Proposition 69 was titled the “DNA Fingerprint, Unsolved Crime and Innocence
Protection Act.” Ballot arguments in favor of the initiative relied heavily on the
promise that DNA collection would increase the likelihood of solving cold cases
and help police investigations. (See Ballot Pamp., Gen. Elec. (Nov. 2, 2004
argument in favor of Prop. 69.) For instance, those arguments referenced a
number of murders that had been solved based in part on DNA evidence and
promised that the DNA Act would help “solve crime, free those wrongfully
accused, and stop serial killers.” (Ballot Pamp., Gen. Elec. (Nov. 2, 2004) text of
15
Prop. 69, p. 62.) Likewise, the findings section of the proposed law declared that
it would “solve crime[s],” “apprehend perpetrators,” expand the number of “cold
hits and criminal investigation links,” and thereby “substantially reduce the
number of unsolved crimes.” (Id. at p. 135.
The Attorney General’s arguments in defense of the DNA Act suffer
essentially the same malady. Most of the government’s justifications for the DNA
Act that the Attorney General emphasizes — even those couched in terms of
“identity” — pivot on generalized concerns about crime-solving. For instance, the
Attorney General argues that since the DNA Act was enacted, the State has
recorded more than 31,000 “hits” between identification profiles taken from
arrestees and DNA stored from unsolved cases. The government argues that DNA
identification yields “substantial benefits” for law enforcement, and illustrates the
point by referencing cold cases that were solved after many years when DNA
evidence was collected and linked to the unsolved matter. The government also
argues that the “benefits” from the DNA Act include deterrence, insofar as a
potential criminal is aware that the Act enhances law enforcement’s capacity to
identify the perpetrators of crimes and prosecute them.
Crime-solving through identification of such perpetrators can certainly
constitute a legitimate government interest. (See Robinson, supra, 47 Cal.4th at
pp. 1121–1122.) At issue here is not whether the government can have a
legitimate interest in solving crimes, but whether such a generalized interest ––
without more –– is sufficient to overcome the privacy rights of individuals subject
to arrest. We have made clear that where the primary purpose of a search or
seizure is to detect crime or gather evidence of crime, the government must
ordinarily have individualized suspicion that the person to be searched has
committed a specific offense for the search or seizure to be valid. (See Ingersoll,
supra, 43 Cal.3d at pp. 1327–1328.) Such individualized suspicion is utterly
16
missing when the government searches all arrestees for evidence that, at some
unknown time in some unknown place under unknown circumstances, they might
have committed some other unidentified crime.
The risk in simply embracing generalized crime-solving as sufficient
justification for compelled collection of a DNA sample from someone who has
merely been arrested is that such a move may be understood to justify searches
and seizures of people and places without any particularized suspicion. The
detection of legal wrongdoing is perhaps the preeminent justification for all
policing activity, making such a generalized interest virtually always loom in the
background when any law enforcement search is attempted. To allow such an
interest to tip the balance and allow for, first, an intrusion into the body; second,
analysis of the information seized therefrom; and, finally, potentially indefinite
retention of the results (regardless of the outcome of the initial arrest that served as
justification for the search), is to permit such an interest to become not only
omnipresent but also omnipotent. Having trumped a person’s interest in what is
often the most jealously guarded fount of information –– and having done so on
the basis of nothing more than that the mere fact a person was subject to a felony
arrest –– the diffuse governmental interest in generalized crime-solving will
almost always overwhelm any offsetting consideration. Which is why we must be
especially vigilant before embracing the government’s argument. (See King,
supra, 569 U.S. at p. 482 (dis. opn of Scalia, J.) [acknowledging that “the
construction of [] a genetic panopticon,” culled from “the taking of DNA samples
from anyone who flies on an airplane,” “applies for a driver’s license,” or “attends
a public school” would have the “beneficial effect of solving more crimes” but
denouncing the idea that this was enough to override “the charter of our
liberties”].
17
So it is beyond question that the government may deploy reasonable
techniques to solve crime –– so long as those techniques do not effect a search or a
seizure without individualized suspicion. Yet the fact that the class of persons
subject to the DNA Act is limited to arrestees, rather than all citizens, does not
give rise to the necessary threshold of suspicion to conduct a generalized search
for incriminating information, nor does it change the usual presumption that
searches are unlawful absent a warrant. Moreover, the warrant exception for a
search incident to arrest is limited. It allows only for searches to uncover evidence
of the crime that gave rise to the arrest itself or weapons that might be used to
injure an arresting officer or accomplish an escape. (Brisendine, supra, 13 Cal.3d
at p. 539.) We made this rule clear in Brisendine, and have continued to adhere to
it in subsequent cases, where we have refused to allow the fact of arrest to justify
the warrantless search of arrestees, or their property, for items not related to one of
these two governmental interests. (See Ruggles, supra, 39 Cal.3d at pp. 11–12
[finding search of containers in trunk of felony arrestee’s car unconstitutional];
Laiwa, supra, 34 Cal.3d at pp. 727–728 [finding search of individual’s tote bag
following arrest unconstitutional].
Under this authority, even full custodial arrest, booking, and incarceration
will not authorize law enforcement to conduct an exploratory search of an arrestee
in the hope of discovering evidence of another, possibly more serious crime. (See
Laiwa, supra, 34 Cal.3d at pp. 727–728.) Rather, booking an arrestee into custody
only permits a further search necessary to serve the government’s administrative
needs. (Id. at p. 726; People v. Macabeo (2016) 1 Cal.5th 1206, 1214.) In
contrast to such searches, the DNA collection at issue would effect a search and
seizure to uncover evidence of any and all illicit activities — those committed in
the past as well as those that might be committed in the future, none of which the
State has justifiable reason to suspect that the arrestee has done. To allow such an
18
intrusion would contravene our precedent and dramatically expand the recognized
exceptions to the warrant requirement.
It is true that DNA sampling will “provide accurate and reliable
identification of criminal offenders” and that “DNA samples, like fingerprints,
may also be used to establish a suspect’s involvement in crimes.” (Maj. opn.,
ante, at p. 35.) What does not follow from this observation is that the
constitutionality of fingerprinting renders DNA sampling constitutional. To treat
fingerprints and DNA samples as essentially similar is akin to comparing a single
piece of fruit to a chain of supermarkets. Neither we, nor the high court, have ever
held that the taking of fingerprints, photographs, or the like invades any
expectation of privacy, or otherwise heightens the risks that bring article I, section
13 or the Fourth Amendment into play.2 To the contrary, we have indicated that
the taking of fingerprints is “standard police procedure,” rather than a search or
seizure of an arrestee’s person. (People v. McInnis (1972) 6 Cal.3d 821, 825–826;
see also Loder v. Municipal Court (1976) 17 Cal.3d 859, 865 (Loder).)3
2
None of the cases the Attorney General cites is to the contrary. The
Attorney General cites United States v. Mitchell (3d Cir. 2011) 652 F.3d 387, 411,
for the proposition that the collecting of fingerprints has met with “universal
approbation” from the courts. But in Mitchell, the court embraced the DNA-
fingerprinting analogy in addressing a challenge to the federal DNA collection
statute; the court did not consider a Fourth Amendment challenge to the practice
of fingerprinting. The same is true of Doe v. Sheriff of DuPage County (7th Cir.
1997) 128 F.3d 586, which did not consider a Fourth Amendment challenge to
fingerprinting but instead addressed a defendant’s argument that the sheriff should
have permitted persons surrendering on warrants to post bond without being taken
into custody. (Id. at p. 588.
3
United States v. Kelly (2d Cir. 1932) 55 F.3d 67, 69, which the majority
relies on here (maj. opn., ante, at pp. 36–37), likewise demonstrates only that
fingerprinting is a commonplace means of identification — not that it is, like DNA
collection, a search that implicates an individual’s constitutional rights.
19
Rather than finding these police processes to constitute reasonable
invasions of an arrestee’s privacy, our precedent instead concludes that the taking
of fingerprints or photographs does not implicate article I, section 13 at all. (See
Loder, supra, at pp. 864–865 [arrestee’s right of privacy is not infringed by the
taking of his fingerprints and photographs, or recording of his vital statistics].
The high court, likewise, has suggested that fingerprinting — and similar
recordings of bodily characteristics that do not require an “intrusion into the body”
— does not come within the Fourth Amendment’s scope. (See United States v.
Dionisio (1973) 410 U.S. 1, 14–15; see also Davis v. Mississippi (1969) 394 U.S.
721, 727 [concluding that fingerprinting “involves none of the probing into an
individual’s private life and thoughts that marks an interrogation or search”].) In
contrast to the collection of DNA, fingerprinting does not intrude on a person’s
bodily autonomy, or record information that is not otherwise available to public
view (like the image of one’s face or markings on a person’s body). (Cf.
Robinson, supra, 47 Cal.4th at pp. 1119–1120 [characterizing intrusions necessary
for DNA profiling as “invasions of the body” constituting searches within the
meaning of the Fourth Amendment].) All this makes it difficult to accept the
majority’s argument that DNA collection is tantamount to fingerprinting and
therefore necessarily constitutional. (See State v. Medina (2014) 102 A.3d 661,
682–683 [rejecting comparison of DNA collection to fingerprinting in holding
Vermont’s DNA collection statute unlawful under Vermont Constitution’s
prohibition against unreasonable searches and seizures].
A recent United States Supreme Court decision also cuts against treating
fingerprinting and DNA collection as equivalent. In Birchfield, supra, 136 S.Ct. at
p. 2185, the high court held that the search incident to arrest doctrine does not
justify the warrantless taking of a blood sample to measure blood alcohol content
20
(BAC). To reach this conclusion, the high court weighed the privacy interests
affected by blood tests against the government’s need for such tests. It found that
the tests implicated significant privacy concerns — not only because of the
intrusive nature of the tests, which involve piercing the skin, but also because a
blood sample contains sensitive information which may be susceptible to
substantial further analysis. (Id. at p. 2178.) The court noted that a blood test
“places in the hands of law enforcement authorities a sample that can be preserved
and from which it is possible to extract information beyond a simple BAC
reading.” (Ibid.) As such, “[e]ven if the law enforcement agency is precluded
from testing the blood for any purpose other than to measure BAC, the potential
remains and may result in anxiety for the person tested.” (Ibid.) In contrast,
“breath tests are capable of revealing only one bit of information, the amount of
alcohol in the subject’s breath.” (Id. at p. 2177.
Breath tests are like fingerprints, and DNA samples, like blood.
Fingerprints reveal only limited bytes of information. Not so with DNA. DNA
samples contain a wealth of genetic information, which would make an individual
nervous about possible violations of his or her privacy as long as the information
remains in the state’s possession. The Supreme Court had no trouble
distinguishing between breath and blood tests, finding one constitutional and the
other not. We likewise would do well not to ignore the distinction between DNA
analysis and fingerprinting.
Nor should we ignore that fingerprinting remains available to advance
many of the very interests that allegedly support the DNA Act. The existence of
fingerprints as a fast and accurate means to ascertain the identity of an arrestee
21
further diminishes the state’s interest in identifying individuals by their DNA.
Undoubtedly there are some instances where a DNA sample may help to solve a
cold case but a set of fingerprints would not. (See maj. opn., ante, at p. 37
[identifying Robinson as one such case].) Nonetheless, just as the “reasonableness
[of blood tests] must be judged in light of the availability of the less invasive
alternative of a breath test” (Birchfield, supra, 136 S.Ct. at p. 2184), DNA tests
must be judged in light of the availability of the less invasive alternative of
fingerprints — even if the alternative is not a perfect substitute. The high court in
Birchfield recognized various advantages that a blood test offers over a breath test
(id. at pp. 2184–2185), and yet did not find that enough for the former to pass
constitutional muster. Instead, because “breath tests are significantly less intrusive
than blood tests and in most cases amply serve law enforcement interests,” the
court concluded that there was no sufficiently compelling justification for
warrantless blood tests. (Id. at p. 2185, italics added.) The same conclusion
follows with the DNA tests at issue here.
III.
Even as the DNA Act falls short of legitimately advancing the interests the
government asserts, its requirements constitute a major intrusion into the privacy
of all the people subject to its procedures. Focusing solely on the physical
collection of DNA samples understates the invasion at issue in this case. The
DNA Act is unusual in that it effects more than one intrusion into a person’s
privacy and autonomy: the intrusion occurs not only when the arrestee is
physically subjected to the DNA collection, but also when his biological sample is
processed to create a DNA profile, stored indefinitely in federal and state
databases, and potentially analyzed in the future when conducting comparisons
22
against newly obtained samples. This continuing intrusion makes the DNA Act’s
search unlike other ordinary searches and seizures, as the potential infringement
on an individual’s privacy is ongoing.
The second intrusion — the processing, storage, and comparison of an
individual’s DNA sample — is a far more significant invasion of an arrestee’s
privacy. That one’s DNA reveals much of a person’s most private, closely
guarded information is difficult to dispute. A DNA sample stored by the state
contains an arrestee’s entire genetic code — information that has the capacity to
reveal the individual’s race, biological sex, ethnic background, familial
relationships, behavioral characteristics, health status, genetic diseases, pre-
disposition to certain traits, and even the propensity to engage in violent or
criminal behavior. (See United States v. Kriesel (9th Cir. 2013) 720 F.3d 1137,
1149, 1159–1160 [citing Krimsky & Simoncelli, Genetic Justice (2010) at pp.
231–232]; see also Abrams & Garrett, DNA and Distrust (2016) 91 Notre Dame
L.Rev. 757, 763.) The DNA profile maintained in state and federal databases thus
has the potential to reveal vast amounts of personal information about those
individuals, and to be used in ways starkly different relative to what justified the
scheme. (Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth
Amendment (1995) 74 Tex. L.Rev. 49, 95–96.) One can scarcely imagine personal
information that falls more closely to the core of the “realm of guaranteed
privacy” that constitutional protections against searches and seizures aim to
protect. (Kyllo, supra, 533 U.S. at p. 34; see also Ruggles, supra, 39 Cal.3d at pp.
9–10 [article I, section 13 considers whether a search interferes with a person’s
reasonable expectations of privacy]; United States v. Amerson (2d Cir. 2007) 483
F.3d 73, 85 [describing the “vast amount of sensitive information that can be
mined from a person’s DNA”].
23
Given the extent of the interests involved, it should not be taken for granted
that the State’s current practices or statutory provisions prohibiting misuse will
mitigate the interference with an arrestee’s expectation of privacy. (Cf. maj. opn.,
ante, at p. 38.) For one, it is not necessarily the actual use of an individual’s DNA
that invades her reasonable expectations of privacy. (See Birchfield, supra, 136
S.Ct. at p. 2178 [“Even if the law enforcement agency is precluded from testing
the blood for any purpose other than to measure BAC, the potential remains and
may result in anxiety for the person tested.”].) Here, a privacy intrusion occurs
from the mere fact of the government’s storage of an arrestee’s DNA, regardless
of the way that the government uses it. That the government retains access to a
person’s most private, sensitive genetic information — and the risks implicit in
such access — constitutes a violation in itself, even if the government does not
presently wring from the DNA all the flows of information to be found there.
(Ibid.; see also United States v. Jones, 565 U.S. 400, 415–416 (conc. opn. of
Sotomayor, J.) [finding continuous GPS monitoring to be an unconstitutional
search in part because of the risk that the government “[could] store such records
and efficiently mine them for information years into the future”].
Moreover, it is precisely this kind of intrusion that justifies California’s
heightened privacy protections in the first place. As discussed above, the purpose
of the constitutional grant of privacy is to protect citizens from governmental
surveillance and other forms of information gathering. The DNA Act permits the
government to store DNA with the potential to reveal information of an
indisputably private nature. Article I, section 13 of our state Constitution — as
informed by the privacy clause of article I, section 1 — protects against such an
invasion of core privacy. (See Ruggles, supra, 39 Cal.3d at pp. 9–10.
Furthermore, that the DNA Act invades the privacy of arrestees in
particular does not mean we can ignore the resulting privacy invasion — or the
24
risks associated with it. We have rejected the premise that an individual placed
under arrest — even custodial arrest — lacks a significant, constitutionally
protected interest in the privacy of her person. We have done so for good reason:
valid justification to arrest an individual for a specific offense does not
consequently extinguish all of her privacy rights, nor does it imply –– without
more –– that there is a basis to suspect her of involvement in any other kind of
felony. (Brisendine, supra, 13 Cal.3d at p. 556.) In contrast, convicted felons
“ ‘retain no constitutional privacy interest against their correct identification.’ ”
(Robinson, supra, 47 Cal.4th at p. 1121.) But we have never held, as the
government argues, that individuals lawfully placed under custodial arrest lack a
constitutionally protected interest in their genetic identity.
Nor can we consider the privacy interests at stake in this case solely from
the perspective of an individual who has been lawfully arrested and convicted. It
is undisputed that Buza was arrested with probable cause and convicted of three
felonies. But Buza declined to provide a sample of his DNA during his booking
into jail — long before his felony convictions, and prior to a probable cause
determination by a neutral magistrate. Whatever is the basis for a felony arrest,
the arrestee may not be subjected to a presumption of guilt until proven innocent.
At the time of refusal, Buza enjoyed the presumption of innocence, and the
ultimate disposition of his felony charges was uncertain. At that moment, Buza
had just as much a right to assert noncompliance in order to raise a challenge
against the DNA Act as an arrestee who would eventually be acquitted of felony
charges. Far from asserting the privacy interests of third parties, Buza challenges
the DNA Act as it applies to himself under the circumstances of this case. (Cf.
Sabri v. United States (2004) 541 U.S. 600, 609 [disapproving of a facial
challenge to the constitutionality of a statute]; In re Cregler (1961) 56 Cal.2d 308,
25
313 [“one will not be heard to attack a statute on grounds that are not shown to be
applicable to himself”].
Suppose we waited instead for another case brought by a plaintiff lawfully
arrested for, and ultimately acquitted of, a felony charge. When this hypothetical
plaintiff is told to submit to a DNA test upon arrest, she is presented with only two
choices, both causing irreparable harm: (1) she could refuse the test and be
lawfully prosecuted for (and found guilty of) a misdemeanor; or (2) she could
submit to the test, and suffer the very harm to her privacy that she would later
attempt to mitigate partially by seeking expungement. We may on occasion
tolerate some degree of privacy harm and still uphold a search and seizure as
reasonable. (See, e.g., People v. Medina (1972) 7 Cal.3d 30, 40 [“Reasonableness
of a search may depend on the degree of invasion of privacy which occurs.”
(italics added)].) But this case raises more serious privacy concerns, because of
the character of the information the government seeks to obtain. (See Birchfield,
supra, 136 S.Ct. at p. 2178; State v. Medina, supra, 102 A.3d at p. 682 [stating
that it is “important to note that the DNA samples being seized provide a massive
amount of unique, private information about a person that goes beyond
identification” in finding unconstitutional a state statutory amendment which had
permitted DNA collection from all felony arraignees].) By declining to reach the
issue here, we force a potential future plaintiff to suffer irreversible adverse
consequences, either by penal sanction or harm to genetic informational privacy.
This seems a substantial burden to impose upon an individual seeking to challenge
the infirmities of the retention provisions, particularly where, based on the facts of
this case, the majority already implicitly recognizes that there are likely
constitutional defects in the statutory provisions regarding the government’s
retention of genetic information. (Maj. opn., ante, at p. 25 [stating that “we must
26
leave for another day” the question of whether automatic expungement is
constitutionally required for “the wrongly arrested or exonerated”].
That Buza was ultimately arraigned and convicted is therefore irrelevant to
our analysis. (Cf. maj. opn., ante, at pp. 2, 41–44.) We must consider Buza’s
claim in light of how he was situated when that claim accrued — when he was
merely “[a]n arrestee whose arrest has not even been subjected to a judicial
determination of probable cause,” and so held privacy interests “closest on the
spectrum of privacy rights to an ordinary citizen.” (People v. Buza (2014) 231
Cal.App.4th 1446, 1488; see People v. Triggs (1973) 8 Cal.3d 884, 893 (Triggs
[“In seeking to honor reasonable expectations of privacy through our
application of search and seizure law, we must consider the expectations of the
innocent as well as the guilty.”].) The majority makes much of the fact that Buza
made incriminating statements when he was arrested, which it takes to mean that
he knew his arrest was supported by probable cause. (Maj. opn, ante, at pp. 20 &
fn. 4, 42.) Why exactly an individual arrestee’s subjective belief about probable
cause should factor into the analysis is far from clear, particularly since we
consider probable cause objectively, from the point of view of a reasonable person
in possession of all the facts known to the arresting officer. (E.g., Whren v. United
States (1996) 517 U.S. 806, 812–813.) Moreover, simply because Buza knew the
authorities were “going to regard [his setting fire to a police car] as an illegal act”
does not mean that he forfeited all reasonable expectations of privacy.
Irrespective of Buza’s state of mind when he was arrested, his refusal to allow
collection of his DNA sample at booking spoke volumes in manifesting his
subjective expectation of privacy. The question facing us here is whether that
expectation is reasonable. Because of the veil of ignorance that prevents society
from knowing for certain whether an arrested individual is in fact guilty of the
offense that is the basis for the arrest, Buza was in every meaningful respect
27
indistinguishable from an arrestee who is later found to be innocent. So we
explore the reasonableness of Buza’s privacy expectation from that perspective.
Unlike the Maryland statute scrutinized in King, the DNA Act does not
require that a lawful arrest have occurred before DNA collection, as it permits the
retrieval and processing of a DNA sample before a magistrate or other judicial
officer has determined that the arrest was supported by sufficient probable cause.
This aspect of the DNA Act vastly expands the number of individuals subject to its
dragnet. As Justice Liu points out, almost one in five felony arrestees are released
prior to a judicial determination of probable cause. Yet all of these individuals
must allow their DNA to be collected and retained by the state (for at least 180
days) under threat of criminal sanction. (Pen. Code, § 299, subd. (c)(2)(D).) Even
more invidiously, the fact that the state may compel a DNA sample from even
those wrongfully arrested provides the perverse incentive for law enforcement to
engage in pretextual arrests as a means to obtain a person’s DNA and wherefore
uncover evidence of crimes.
The DNA Act’s lack of an automatic expungement provision exacerbates
such concerns. Again, unlike the Maryland statute, the Act does not require the
destruction of the DNA sample and removal of any resulting profile from state and
federal databases if the individual at issue is never convicted of a felony. Instead,
the DNA Act requires a discharged arrestee to initiate expungement proceedings
and navigate the resulting process himself. Although the Department of Justice
assures us that the “vast majority of requests have resulted in expungement,” the
Attorney General does not provide — and the record does not elsewhere contain
— any information about how often eligible individuals initiate expungement
proceedings in the first place. The absence of automatic expungement
proceedings, and the employment of a process that requires the arrestee to initiate
expungement and provide required documentation, heightens the possibility that
28
the State will retain possession of DNA profiles for individuals who were never
convicted of qualifying felonies, who may never have been charged with a felony
in the first place, or who may not have been lawfully arrested at all.
Ironically, the interests advanced by the Attorney General on behalf of the
state — i.e., generalized crime solving, proper housing of arrestees within the jails,
and decision-making about pretrial release — are likely to be quite well-served
even if the statutory scheme avoided its present constitutional defects. Indeed, the
concerns about inadequate expungement measures and pretextual or abusive
arrests could be alleviated by provisional amendments to the DNA Act already
enacted by the Legislature. Under the version of the Act that will become
operative if we affirm the appellate court, a jail official is not to transmit a DNA
sample to the Department of Justice until there has been a felony arrest warrant
signed by a magistrate, a grand jury indictment issued, or a judicial determination
of probable cause for the arrest. (Pen. Code, § 298, subd. (a)(1)(A).) Waiting for
a neutral determination of probable cause would add, at most, 48 hours to the 30
days needed on average to process a DNA sample. (See County of Riverside v.
McLaughlin (1991) 500 U.S. 44, 56.) In view of the delays already associated
with DNA processing, postponing the process until a detached and neutral
magistrate has found probable cause would diminish none of the state’s interests
furthered by the DNA Act, since the state would be as able to “identify” arrestees
after a 32-day waiting period as it would after a 30-day period. The amendment,
however, would significantly cut down on the number of people whose privacy is
invaded due to the analysis, storage, and comparison of their DNA samples.
Nowhere does the majority seem to reject the merits of that approach. (See
maj. opn., ante, at pp. 21–22.) Instead, it argues that since DNA processing is so
slow, processing of the arrestees’ samples in practice — regardless of what the law
permits — usually does not take place until judicial probable cause has been made
29
anyway. (Id. at p. 22.) The slow operation of existing technology and institutional
practices thus become features supporting the constitutionality of the Act. As odd
as this argument is, its force is sapped further still by the Act’s blanket permission
for the processing of DNA samples even if a magistrate finds that the arrest was
without probable cause. (See Pen. Code, § 298 [requiring jail officials to
“promptly” forward biological samples to the Department of Justice without
providing any exception for those wrongfully arrested].) The burden remains on
the individual — even if wrongfully arrested or later exonerated — to seek
expungement. But were we to strike down the Act, automatic expungement would
become law. (See Pen. Code, § 299 [conditional provision to the Act requiring
automatic expungement of DNA profiles from databank when the arrests do not
lead to valid convictions].) In contrast, the existing statute creates a default
regime that requires DNA samples from anyone subject to a felony arrest ––
irrespective of whether they will eventually be judged guilty or whether a neutral
magistrate finds probable cause — and leaves the state in a position to retain such
information indefinitely unless expungement is pursued and achieved.
None of these observations implies we should strike down the DNA Act
because we prefer its replacement on policy or prudential grounds. (Cf. maj. opn.,
ante, at p. 29, fn. 7.) Instead we emphasize what remains obvious even if
downplayed by the majority: the Legislature has approved a law that
accomplishes much of the Government’s interests while alleviating the
constitutional problem.
While the DNA Act is an initiative entitled to a presumption of validity, the
searches it permits — and in fact, requires law enforcement to carry out — occur
without a warrant or probable cause. If those searches are to be upheld, it is the
State’s burden to persuade us that they fall within one of the recognized
exceptions to the warrant requirement, or that they are otherwise reasonable.
30
While “mere doubt” about the DNA Act’s invalidity is not reason enough to strike
it down (Calfarm Insurance Co. v. Deukmejian (1989) 48 Cal.3d 805, 814
(Calfarm)), we must nevertheless require the State to justify the searches the Act
accomplishes. In this case, the State has not carried its burden to show the
reasonableness of its searches when balanced against the interference with
individual privacy. So provisions of the DNA Act authorizing such unreasonable
searches must be struck down.
Insofar as the majority would lean on majoritarian impulses to imply that
something more is required because the Act is an initiative passed by voters (see
maj. opn., ante, at pp. 22–23, 34, 44), we note that there is no formal distinction in
our role in evaluating initiatives versus legislation enacted by representative
political institutions. (Calfarm, supra, 48 Cal.3d at pp. 814–815 [evaluating an
initiative “ ‘in the light of established constitutional standards’ ” and finding it
unconstitutional].) The Constitution applies both, and equally, to legislators and
the general public. The majority cannot mean to suggest otherwise.
In the final analysis, arrestees do not have such diminished expectation of
privacy as to permit the State to retain their DNA profile and conduct repeated
searches of it. As such, when weighed against the State’s generalized interest in
identifying arrestees and solving crimes, an arrestee’s reasonable privacy interest
in his or her genetic information — uniquely protected under the California
Constitution — must win. (Triggs, supra, 8 Cal.3d at p. 892 [“ ‘important as
efficient law enforcement may be, it is more important that the right of privacy
guaranteed by these constitutional provisions be respected’ ”].
31
IV.
The DNA Act unlawfully invades people’s reasonable expectation of
privacy in their personal genetic information. Any diminished expectation of
privacy arrestees may or may not have in their genetic code does not justify an
intrusion of this magnitude. The government’s asserted interest in identifying
individuals in its custody and solving crimes may prove important in justifying a
variety of practices. But it does not countenance this intrusion, as the
government’s rationale for the DNA Act is neither borne out by the Act’s
implementation nor consistent with our precedent’s restrictions on suspicionless
searches. This makes the DNA Act unconstitutional under our state charter as
applied to felony arrestees — individuals, like Buza, who are not yet known to be
lawfully arrested, much less found guilty. Far from invalidating the work of the
California electorate, striking down the Act would vindicate our core
constitutional values, which recognize that our citizens have the “inalienable
rights” to be free of arbitrary governmental intrusion and to enjoy “safety,
happiness, and privacy.” (Cal. Const., art. I, §§ 1, 13.
With respect, I dissent.
CUÉLLAR, J.
WE CONCUR:
LIU, J.
PERLUSS, J.*
*
Presiding Justice of the Court of Appeal, Second Appellate District,
Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
32
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Buza
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 231 Cal.App.4th 1446
Rehearing Granted
Opinion No. S223698
Date Filed: April 2, 2018
Court: Superior
County: San Francisco
Judge: Carol Yaggy
Counsel:
J. Bradley O’Connell and Kathryn Seligman, under appointments by the Supreme Court; and Janice
Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Michael T. Risher; Joseph R. Grodin; Paul Hastings, Peter C. Meier, Eric A. Long and Jamie L. Williams
for American Civil Liberties Union Foundation of Northern California as Amicus Curiae on behalf of
Defendant and Appellant.
Hanni Fakhoury, Jennifer Lynch and Lee Tien for Electronic Frontier Foundation as Amicus Curiae on
behalf of Defendant and Appellant.
Linda F. Robertson and Jennifer Friedman for California Public Defenders Association, California
Attorneys for Criminal Justice and Los Angeles County Public Defender as Amici Curiae on behalf of
Defendant and Appellant.
Daniel J. Broderick, David Porter and Rachelle D. Barbour for Federal Public Defender of the Eastern
District of California and National Association of Criminal Defense Lawyers as Amici Curiae on behalf of
Defendant and Appellant.
Edmund G. Brown Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State
Solicitor General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Jeffrey M.
Laurence, Assistant Attorney General, Steven T. Oetting and Michael J. Mongan, Deputy State Solicitors
General, Max Carter-Oberstone, Associate Deputy State Solicitor General, Joyce Blair, Stan Helfman and
Enid A Camps, Deputy Attorneys General, for Plaintiff and Respondent.
Fulbright & Jarowski, Norton Rose Fulbright US, Eric A. Herzog, Tillman James Breckenridge and
Jonathan S. Franklin for DNA Saves as Amicus Curiae on behalf of Plaintiff and Respondent.
Steve Cooley and Jackie Lacey, District Attorneys (Los Angeles), Irene Wakabayashi, Steven Katz, Phyllis
C. Asayama and Roberta Schwartz, Deputy District Attorneys, for Los Angeles County District Attorney as
Amicus Curiae on behalf of Plaintiff and Respondent.
Page 2 – S0223698 – counsel continued
Counsel:
Jan Scully, District Attorney (Sacramento), Anne Marie Schubert, Deputy District Attorney; W. Scott
Thorpe, Mark Zahner and Albert C. Locher for California District Attorneys Association as Amicus Curiae
on behalf of Plaintiff and Respondent.
Jones & Mayer, Martin J. Mayer, James Touchstone and Deborah Pernice-Knefel for California State
Sheriffs’ Association, California Police Chiefs’ Association and California Peace Officers’ Association as
Amici Curiae on behalf of Plaintiff and Respondent.
Hill Wallack, Christopher H. Asplen; Newton Rimmel and Ronald F. Rimmel for Global Alliance for
Rapid DNA Testing as Amicus Curiae on behalf of Plaintiff and Respondent.
Tony Rackauckas, District Attorney (Orange), Jim Tanizaki and Camille Hill, Assistant District Attorneys,
Scott G. Scoville, Tammy Sprugeon, Andrew E. Katz, Katherine David and Nancy Hayashida, Deputy
District Attorneys, for Orange County District Attorney as Amicus Curiae on behalf of Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
J. Bradley O’Connell
First District Appellate Project
475 Fourteenth Street, Suite 650
Oakland, CA 94162
(415) 495-3119
Michael J. Mongan
Deputy State Solicitor General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-2548
Opinion Information
| Date: | Docket Number: |
| Mon, 04/02/2018 | S223698 |
