February 24, 2012

9th Circuit Upholds Collection of DNA Samples from Arrestees

The recent trend in the use of DNA evidence by law enforcement has been for states to expand their DNA databases to include samples from those arrested of crimes (a move also supported by President Obama); see state summary here. As could be expected, this extension of mandatory DNA testing to include arrestees (not just those convicted) has been controversial (and most susceptible to legal challenge under the 4th Amendment prohibition against unreasonable searches and seizures). The inclusion of arrestees in the California DNA database was instituted in 2009, following the passing of Proposition 69 in 2004, in which the voters approved of DNA collection from convicted felons. Now, a 3-judge panel of the 9th Circuit has ruled that the California state law that implemented Proposition 69 by requiring the collection of DNA samples from all adults arrested of a felony does not violate the 4th Amendment (this federal court decision conflicts with an earlier state court decision finding the law unconstitutional). The 9th Circuit has previously encountered the constitutionality of DNA collection; in 2004, the court ruled that the collection of DNA samples from parolees did not violate the 4th Amendment. Regarding arrestees, last year the 3rd Circuit also upheld the collection of DNA samples from those arrested of federal crimes; this case has been appealed to the Supreme Court). No doubt, the high court will have the last word on this wave of DNA database expansion; the court most recently encountered the use of DNA evidence in law enforcement last year when it upheld the right to post-conviction DNA testing.

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