(San Francisco County Super. Ct. No. SCN 207818) Hon. Carol Yaggy
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act),*fn1 which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense "immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest . . . ." (§§ 296.1, subd. (a)(1)(A), 296, subd. (a)(2)(C).) Appellant claims that the seizure of his DNA at a time when he was entitled to the presumption of innocence, and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his Fourth Amendment right to be free from unreasonable searches and seizures. We agree, and therefore reverse the judgment.*fn2
FACTS AND PROCEEDINGS BELOW
Shortly after 3 o'clock on the morning of January 21, 2009, San Francisco Police Sergeant Jody Kato saw an orange glow emanating from a parked police car. When he realized the vehicle was on fire he saw a man, later identified as appellant, pop up from behind the vehicle and run into a nearby wooded area holding something in his hand. When another officer called out for him to surrender, appellant stepped out of the woods with his hands up. A search of the wooded area produced a road flare and a bottle containing a mixture of oil and gasoline. Matches were found in appellant's pocket and a container of oil was found in his backpack. A fire department investigator concluded that all four tires of the patrol car had been damaged by fire, and traces of polystyrene, gasoline residue and/or medium weight oil were found on two of the tires.
Several hours after his arrest, while he was confined in county jail and prior to any appearance before a magistrate or judge, appellant was asked to provide a DNA sample, as required by section 296, and refused, even after being informed that refusal to provide a sample would constitute a misdemeanor with which he would be charged.
On February 17, 2009, appellant was charged by information with arson (§ 451, subd. (d)-count 1); possession of combustible material or incendiary device (§ 453, subd. (a)-count 2); vandalism (§ 594-count 3); and refusal or failure to provide a DNA specimen (§ 298.1, subd. (a)-count 4). Appellant pleaded not guilty to all four counts.
With respect to the first three counts, appellant admitted at trial that he set fire to the patrol car's tires using a mixture of oil, gasoline, and styrofoam as an accelerant. He did not commit his acts maliciously, he testified, but to protest what he considered a corrupt government and system and to call attention to a political group he had formed, whose web sites had been "deleted from the Internet."
As to the fourth count, shortly after appellant's arrest and while he was in county jail, San Francisco Sheriff's Deputy Kenneth Washington advised appellant that state law required him to provide a DNA sample, which would be obtained by swabbing the inside of his cheek with a cotton-tipped swab. When appellant stated he did not wish to provide a sample, Deputy Washington showed appellant a Penal Code section 296 collection form which stated "the law about 296 PC requirements." After appellant read the form, Deputy Washington again asked him to provide a sample, and appellant again refused. Appellant continued to refuse after being advised that his refusal was a misdemeanor offense with which he would be charged under section 298.1. Deputy Washington stated that provision of a DNA sample was required of all persons arrested for a felony offense, appellant had not been singled out, and his DNA was not sought to connect him to evidence found at the scene, and it was not used for that purpose. Washington testified that at the time San Francisco deputy sheriffs seek a DNA sample from arrestees they also obtain two thumbprints and a signature, and he apparently had no difficulty obtaining these items from appellant.
On April 22, 2009, appellant unsuccessfully moved for judgment of acquittal on count 4, contending that his arrest for a felony offense does not create a constitutionally adequate basis for requiring him to provide a biological sample.
On April 30, 2009, the jury returned a verdict finding appellant guilty of all counts. That same day, the court ordered appellant to provide a DNA sample prior to sentencing. On May 28, 2009, after learning of appellant's refusal to comply with this order, the court issued an order permitting the San Francisco Sheriff's Department or the Department of Corrections to use "reasonable force, as outlined in P.C. 298.1, and in conjunction with guidelines of the Department of Corrections," to "bring defendant Buza into compliance" with section 296. Prior to the July 6, 2009 sentencing hearing, appellant provided a DNA sample.
Appellant was sentenced to the low term of 16 months in state prison on count 1, with an additional concurrent 16-month sentence on count 2, and a concurrent six-month county jail term on count 4, refusal to provide a DNA sample. A 16-month sentence on count 3 was stayed pursuant to section 654. The court granted appellant appropriate custody and conduct credits, imposed appropriate restitution fines, and ordered him to register as an arson offender under section 457.1. The court also informed appellant that he would be included in the State's DNA and forensic identification database and data bank program.
California law enforcement officials have been authorized to collect forensic identification blood, saliva or buccal (cheek) swab samples from persons convicted of certain serious crimes since 1984. (See former § 290.2, added by Stats. 1983, ch. 700, § 1.) In 1998, the Legislature enacted the DNA Act (§§ 295-300.3; Stats. 1998, ch. 696, § 2), which required "DNA and forensic identification data bank samples" from all persons convicted of specified offenses. (§ 295, subd. (b)(2).)*fn3 The purpose of the DNA Act "is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children." (§ 295, subd. (c).)
At the November 2004 General Election, California voters amended the DNA Act by enacting Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. That measure significantly enlarged the scope of persons subject to warrantless DNA searches by, among other things, providing that, beginning on January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for or charged with any felony. (§ 296, subd. (a)(2)(C).)
Pursuant to the DNA Act, collection of DNA must take place "immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody." (§ 296.1, subd. (a)(1)(A).) DNA samples are ordinarily limited to collection of inner cheek cells of the mouth (buccal swab samples) with a small stick. (§ 295, subd. (e).) The taking of a DNA sample is mandatory; law enforcement officials lack discretion to suspend the requirement. (§ 296, subd. (d); People v. King (2000) 82 Cal.App.4th 1363, 1373.)
After the sample is taken, it is sent to the DNA Laboratory of the California Department of Justice (DOJ), which is responsible for the management and administration of the state's DNA and Forensic Identification Database and Data Bank Program and which stores, correlates and compares forensic identification samples for use in criminal investigations. (§§ 295, subds. (f), (g), (i)(1)(C); 295.1, subd. (c); People v. King, supra, 82 Cal.App.4th at p. 1370.) Analysis of the DNA may be "only for identification purposes." (§ 295.1, subd. (a).) A genetic profile is created from the sample based on 13 genetic loci known as "noncoding" or "junk" DNA, because "they are thought not to reveal anything about trait coding" (Haskell v. Brown (N.D.Cal. 2009) 677 F.Supp.2d 1187, 1190 (Haskell)); the resulting profiles are so highly individuated that the chance of two randomly selected individuals sharing the same profile are "infinitesimal" (United States v. Kincade (9th Cir. 2004) 379 F.3d 813, 819 (Kincade), cert. den. sub nom. Kincade v. United States (2005) 544 U.S. 924). The profile is uploaded into the state's DNA data bank, which is part of the national Combined DNA Index System (CODIS),*fn4 and can be accessed by local, state and federal law enforcement agencies and officials. (Haskell, at p. 1190.) As soon as a DNA profile is uploaded, it is compared to crime scene samples in CODIS; new crime scene samples are searched against the uploaded profile, and a search of the entire system is performed once each week. (Id. at p. 1191.) In CODIS, the profile does not include the name of the person from whom the DNA was collected, or any case related information, but only a specimen identification number, an identifier for the agency that provided the sample, and the name of the personnel associated with the analysis. (Id. at p. 1190.) If a "hit" is made, matching the profile to a crime scene sample, it is confirmed with a new analysis of the profile, after which the submitting laboratory is notified and can notify the appropriate law enforcement agency. (Id. at p. 1191.)
The DNA Act specifies that samples and profiles may be released only to law enforcement personnel and contains penalties for unauthorized use or disclosure of DNA information. (§299.5, subds. (f), (i).) A person whose DNA profile has been included in the state data bank may have his or her DNA specimen and sample destroyed, and database profile expunged from the data bank program, if he or she "has no past or present offense or pending charge which qualifies that person for inclusion within the . . . Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile." (§ 299, subd. (a).) The expungement process, however, is "rather lengthy." (Haskell, supra, 677 F.Supp.2d at p. 1191.) An arrestee must wait until the statute of limitations has run before requesting expungement; the court must then wait 180 days before it can grant the request; the court's order is not reviewable by appeal or by writ; and the prosecutor can prevent expungement by objecting to the request. (Id. at pp. 1191-1192; §§ 299, subds. (b)(1), (c)(1), (c)(2)(D).)*fn5 Alternatively, a person may seek expungement after being found factually innocent or not guilty of the offense. (§ 299, subds. (b)(3), (b)(4).)
Federal law governing DNA testing has followed a trajectory similar to that which led to the DNA Act. A decade ago, Congress enacted the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. § 14135a) (the federal DNA Act), which required the collection of a DNA sample from individuals convicted of "qualifying" federal offenses and incarcerated or on parole, probation or supervised release. (42 U.S.C. § 14135a(a)(1) and (2); Kincade, supra, 379 F.3d at pp. 816-817.) "[Q]ualifying federal offenses," enumerated in the statute, included murder, voluntary manslaughter, aggravated assault, sexual abuse and other violent offenses. (42 U.S.C. § 14135a(d)(1); Kincade, at p. 816, fn. 1.) In 2004, Congress expanded the definition of "qualifying federal offenses" to include all felonies. (United States v. Kriesel (9th Cir. 2007) 508 F.3d 941, 942 (Kriesel).) In 2006, Congress further expanded the reach of the 2000 act by allowing the Attorney General to "collect DNA samples from individuals who are arrested, facing charges, or convicted . . . ." (42 U.S.C. § 14135a(a)(1)(A), italics added.)*fn6 The samples collected are provided to CODIS.
Appellant's Fourth Amendment Claim
The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." (U.S. Const., Amend. IV.) There is no doubt that nonconsensual extractions of substances that may be used for DNA profiling are "searches" entitled to the protection of the Fourth Amendment. (Schmerber v. California (1966) 384 U.S. 757, 767-771 (Schmerber) (blood); People v. Robinson (2010) 47 Cal.4th 1104, 1119, cert. den. sub nom. Robinson v. California (2010) ___ U.S. ___ [131 S. Ct. 72] (blood); Skinner v. Railway Labor Executives Assn. (1989) 489 U.S. 602, 616-617 (breathalyzer and urine sample); Cupp v. Murphy (1973) 412 U.S. 291, 295 (finger nail scrapings).) This principle has been applied to swabbing the inside of the mouth for saliva. (See, e.g., Padgett v. Donald (11th Cir. 2005) 401 F.3d 1273, 1277, cert. den. sub. nom. Boulineau v. Donald (2005) 546 U.S. 820; Schlicher v. Peters (10th Cir. 1996) 103 F.3d 940, 942 943.)
Courts have routinely held that the collection of DNA by means of a blood test is a minimal intrusion into an individual's privacy interest in bodily integrity (Kriesel, supra, 508 F.3d at p. 948; United States v. Amerson (2nd Cir. 2007) 483 F.3d 73, 84 (Amerson) , cert. den. sub nom. Amerson v. United States (2007) 552 U.S. 1042; United States v. Sczubelek (3rd Cir. 2005) 402 F.3d 175, 184, cert. den. (2006) 548 U.S. 919; Kincade, supra, 379 F.3d at pp. 836-837), while collection by means of a buccal swab is even less intrusive. (United States v. Mitchell (3rd Cir. July 25, 2011, No. 09-4718) ___ F.3d ___, 2011 WL 3086952, *17 (Mitchell); Haskell, supra, 677 F.Supp.2d at p. 1198.) The collection of the DNA sample, however, is only the first part of the search authorized by the DNA Act; the second occurs when the DNA sample is analyzed and a profile created for use in state and federal DNA databases. (Mitchell, at *17; Amerson, at p. 85.) The latter search is the true focus of our analysis and the analyses of other courts that have considered the validity of DNA statutes.
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is "reasonableness." Subject only to a few specifically established and well delineated exceptions, none of which are relied upon in this case, warrantless searches are per se unreasonable under the Fourth Amendment; the state therefore bears the burden of showing that the search at issue is reasonable and therefore constitutional. (People v. Williams (1999) 20 Cal.4th 119, 127.)
Prior to expansion of the scope of the Federal DNA Act in 2006 to include the taking of DNA samples from arrestees, the constitutionality of that act was upheld by every federal circuit presented with the issue. (Banks v. United States (10th Cir. 2007) 490 F.3d 1178; United States v. Weikert (1st Cir. 2007) 504 F.3d 1; Amerson, supra, 483 F.3d 73; United States v. Hook (7th Cir. 2006) 471 F.3d 766, cert den. sub nom. Hook v. United States (2007) 549 U.S. 1343; Johnson v. Quander (D.C. Cir. 2006) 440 F.3d 489, cert. den. 549 U.S. 945; United States v. Conley (6th Cir. 2006) 453 F.3d 674; United States v. Kraklio (8th Cir. 2006) 451 F.3d 922, cert. den. sub nom. Kraklio v. United States (2006) 549 U.S. 1044; United States v. Sczubelek, supra, 402 F.3d 175; Groceman v. U.S. Dept. of Justice (5th Cir. 2004) 354 F.3d 411; Kincade, supra, 379 F.3d 813.)*fn7 In upholding statutes requiring the taking of DNA samples from persons convicted of criminal offenses, the Ninth Circuit has applied the "totality of the circumstances" test, which balances the invasion of an individual's privacy against the government's interest in conducting a search without a warrant supported by probable cause. (See, e.g., Kriesel, supra, 508 F.3d at p. 947; Kincade, at p. 831.) A majority of other federal circuits also employ this test, while other courts have applied the "special needs" test. (See Kriesel, at p. 946; Kincade, at pp. 830-831 [compiling cases].) The "special needs" exception to the general rule that a search must be based on individualized suspicion permits suspicionless searches "if they are 'conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable.' " (Friedman v. Boucher (9th Cir. 2009) 580 F.3d 847, 853 (Friedman), quoting Kincade, supra, 379 F.3d at p. 823.)
California courts also employ the totality of the circumstances test to determine the reasonableness of a warrantless search. As our Supreme Court stated in a case in which DNA was collected pursuant to an earlier version of section 296, " '[r]easonableness . . . is measured in objective terms by examining the totality of the circumstances' (Ohio v. Robinette (1996) 519 U.S. 33, 39 . . . ), and 'whether a particular search meets the reasonableness standard " 'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' " ' (Veronica School Dist. 47J ...