SAN FRANCISCO (CN) - The 9th Circuit agreed Thursday to grant an en banc rehearing over a California law that lets police collect DNA from any adult who is arrested for a felony.
In February, a divided three-judge panel found no constitutional problem with the law.
"We agree that the California DNA Act would be unconstitutional if it allowed police officers to collect DNA samples from random citizens on the street without any probable cause to believe that they committed a crime," Judge Milan Smith Jr. wrote for the majority. "In reality, however, the police cannot collect DNA without first determining that there is probable cause that the individual committed a felony."
That decision can no longer be cited as precedent now that the court has granted rehearing.
The latest two-page order notes that Judges Jacqueline Hong-Ngoc Nguyen, Paul Watford and Andrew Hurwitz did not participate in the deliberations or vote as to the rehearing.
A class of sampling subjects sued the state in 2009, claiming the collection of DNA samples constituted an illegal seizure of their genetic information and violated their due process rights. Lead plaintiff Elizabeth Haskell was arrested in March 2009 at a peace rally. She claims police told her she would be charged with a separate misdemeanor when she refused to let authorities swab the inside of her cheek, the typical method officers use to collect DNA.
Representing Haskell, the American Civil Liberties Union claimed the swab method constituted an unconstitutional search.
After certifying a proposed class, U.S. District Judge Charles Breyer refused to enter an injunction in 2009. The federal appeals court's February ruling affirmed that decision, noting that "even critics of mandatory DNA sampling concede that a felony arrestee has a significantly diminished expectation of privacy."
The panel found that buccal swabs are also far less invasive than the blood tests of the past. "Moreover, California law enforcement officers typically allow arrestees to perform the buccal swab collection on themselves, further minimizing the physical privacy intrusion," Smith wrote.
The ACLU failed to persuade the court that California's DNA database is intrusive.
"Although plaintiffs use the phrase 'DNA profile' to evoke images of an oppressive 'Big Brother' cataloging our most intimate traits, the reality is far less troubling," Smith wrote. "A DNA profile contains only thirteen 'junk DNA' markers that are not linked to any genetic or physical trait. They are used only to identify the individual."
Judge William Fletcher penned the dissent, which said DNA swabs are as intrusive as the taking of fingerprints.
"The Supreme Court has twice held that fingerprints may not be taken unless there is consent, a warrant, or probable cause," Fletcher wrote. "I would apply to DNA the law that we already apply to fingerprints."
"We have never allowed the compulsory taking of DNA samples from mere arrestees," he added. "We should not begin now."
