The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that buccal mouth swabs may be used to extract DNA samples from any adult arrested or charged with a felony in California. The 2-1 decision upholds a 2004 voter-enacted provision [Proposition 69 materials] of the DNA and Forensic Identification Database and Data Bank Act of 1998 [text] requiring law enforcement officers to collect such samples from arrestees, a mandate challenged by the plaintiffs as a violation of Fourth Amendment [Cornell LII backgrounder] protections against unlawful search and seizure. Justice Milan Smith, Jr. assessed the constitutionality of the California law under the "totality of the circumstances" test—whether the government interest in collecting and testing a DNA sample without a warrant outweighs the intrusion on an arrestee's privacy. Smith wrote for the majority:
Given the arrestee's diminished privacy interests; the de minimis nature of the physical intrusion entailed in the taking of a buccal swab; the carefully circumscribed scope of the DNA information being extracted; the stringent limits on the manner in which that information may be used; and the well established law enforcement interest in obtaining arrestees' identifying information, and further, to deter future criminal acts and to exculpate innocent arrestees—the balance of interests tilts strongly in favor of upholding the constitutionality of the 2004 Amendment.The court thus affirmed the lower court's denial of plaintiffs' motion for a preliminary injunction against the DNA Act.
Last month the Minnesota Supreme Court [official website] upheld a state statute requiring people convicted of crimes to submit a DNA sample, similarly ruling that such a mandate does not violate the Fourth Amendment [JURIST report] right to be free from unreasonable searches and seizures. In August a California appellate court struck down the 2004 Amendment [JURIST report] to the DNA Act, overturning a misdemeanor conviction for a felon's refusal to provide a DNA sample after confessing to arson. US Attorney General Eric Holder instructed federal prosecutors in November 2010 to use DNA evidence as much as possible [JURIST report], reversing the previous policy of the Bush administration. In May 2009 the US District Court for the Eastern District of California upheld the constitutionality of mandatory DNA collection [JURIST report] for all persons arrested or detained under federal authority. In March of that year the US Court of Appeals for the Fourth Circuit ruled that a South Carolina law requiring convicted first degree sex offenders to submit to a DNA test and pay $250 in processing fees prior to their release does not violate the ex post facto clause of the Constitution [JURIST report].