IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
August 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MARK BUZA, DEFENDANT AND APPELLANT.
(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.
The Statutory Scheme
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 v. Acton [(1995)] 515 U.S. [646,] 652-653; see also Samson v. California (2006) 547 U.S. 843, 848 (Samson).)" (People v. Robinson, supra, 47 Cal.4th at p. 1120.)
Balancing Individual Privacy Rights Against Governmental Interests: Convicted Offenders
In cases applying the totality of the circumstances test to uphold DNA testing of convicted offenders, the fact of the offenders' convictions drives both sides of the analysis. Convicted offenders are subject to " 'a broad range of [restrictions] that might infringe constitutional rights in free society' " and have "severely constricted expectations of privacy relative to the general citizenry" (Kincade, supra, 379 F.3d at pp. 833-834; see Kriesel, supra, 508 F.3d at p. 947); specifically, convicted offenders have been held to have no reasonable expectation of privacy in their identity. (Kincade, at p. 837; Kriesel, at p. 947; Hamilton v. Brown (9th Cir. 2010) 630 F.3d 889, 895; Rise, supra, 59 F.3d at p. 1560; People v. Robinson, supra, 47 Cal.4th at p. 1121.) At the same time, the government has a strong interest in identifying and prosecuting offenders and, in the case of those on supervised release, promoting rehabilitation and protecting the community. (Kincade, at pp. 833-835 [parolee]; Kriesel, at p. 947 [probationer]; Hamilton v. Brown, at pp. 895-896.) Accurate identification has been viewed as serving the governmental purposes of returning conditional releasees to prison if they reoffend, reducing recidivism through the deterrent effect of DNA profiling, and solving past crimes (Kincade, at pp. 838-839; Kriesel, at pp. 949-950), as well as avoiding erroneous convictions (People v. Robinson, at p. 1121).
These cases have emphasized " 'the well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public.' " (U.S. v. Scott (9th Cir. 2006) 450 F.3d 863, 873 (Scott), quoting Kincade, supra, 379 F.3d at p. 833.) Kincade "stressed the 'transformative changes wrought by a lawful conviction and accompanying term of conditional release,' . . . and the 'severe and fundamental disruption in the relationship between the offender and society, along with the government's concomitantly greater interest in closely monitoring and supervising conditional releasees,' occasioned by a conviction and imposition of release conditions." (Scott, at p. 873, quoting Kincade, at pp. 834, 835.) Kincade expressly emphasized the "limited nature" of its holding to "lawfully adjudicated criminals whose proven conduct substantially heightens the government's interest in monitoring them." (Kincade, at pp. 835-836.) Similarly, Kriesel emphasized that its ruling "does not cover DNA collection from arrestees" or individuals who have "completely served" their terms and "left the penal system." (Kriesel, supra, 508 F.3d at pp. 948-949.)
Even these cases, however, generated significant debate and disagreement among the judges who decided them. Kincade, supra, 379 F.3d 813, in which a plurality upheld the Federal DNA Act as it then applied to convicted violent offenders, produced five separate opinions. Judge Gould, whose vote allowed the court to affirm, emphasized that the fact DNA was taken from a convicted offender on supervised release was critical. (Kincade, at pp. 840, 841-842 (conc. opn. of Gould, J.)*fn8 Four judges joined in Judge Reinhardt's dissent, which cautioned that under the affirming judges' analyses, "all Americans will be at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace, and perhaps even worse, of being subjected to various other governmental programs providing for suspicionless searches conducted for law enforcement purposes." (Kincade, supra, 379 F.3d at pp. 842, 843 (dis. opn. of Reinhardt, J.).) Judge Reinhardt criticized use of the totality of the circumstances test to uphold a suspicionless search, but would have invalidated the DNA Act even under that test because "[t]he invasions of privacy the Act authorizes are substantial; the probationers and parolees subjected to its provisions maintain reasonable expectations of privacy; and the government's interest, while significant, is no stronger than its ordinary interest in investigating and prosecuting crimes." (Id. at pp. 864, 869.) Judge Kozinski joined Judge Reinhardt's opinion, but also wrote separately, arguing that "[i]f collecting DNA fingerprints can be justified on the basis of the plurality's multifactor, gestalt high-wire act, then it's hard to see how we can keep the database from expanding to include everybody." (Kincade, at pp. 871, 872 (dis. opn. of Kozinski, J.).) Judge Hawkins wrote yet another dissent, finding the suspicionless extraction of DNA not justified by the identified governmental needs despite convicted felons' lessened expectations of privacy. (Kincade, at p. 875 (dis. opn. of Hawkins, J.).)
In Kriesel, supra, 508 F.3d 941, which upheld DNA testing of all convicted felons on supervised release, Judge Fletcher dissented, focusing on the facts that the 2004 federal DNA Act permitted continued searches of Kriesel's DNA whenever the government "has some minimal investigative interest," including after the end of his period of supervised release, and that recidivism rates were "among the lowest for non-violent drug offenders" such as Kriesel. (Kriesel, at pp. 950, 956, 957 (dis. opn. of Fletcher, J.).)*fn9
Balancing the Interests: Prior to Conviction
The significance of the offender having suffered a conviction was highlighted in Friedman, supra, 580 F.3d at pages 850-851, which found unconstitutional the forcible taking of a buccal sample for DNA collection from a pretrial detainee in the absence of a warrant, court order or individualized suspicion, for the express purpose of helping solve cold cases. The defendant in Friedman had served a sentence in another state and was no longer under governmental supervision; his current arrest was for an unrelated charge. (Id. at p. 851.) The government argued the DNA extraction was "reasonable" in light of the limited privacy rights of pretrial detainees and the interest of law enforcement in collecting DNA samples for use in its databases. (Id. at p. 856.)
The Friedman court disagreed, noting that suspicionless searches of pretrial detainees had not previously been upheld for reasons other than prison security and emphasizing the United States Supreme Court's statement in Schmerber, supra, 384 U.S. 757, 769-770, that " '[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusion on the mere chance that desired evidence might be obtained.' " (Id. at pp. 856-857.) Friedman saw the government's position, which "would endorse routine, forcible DNA extraction," as contrary to the Schmerber court's view that the need for " 'informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.' " (Ibid., quoting Schmerber, at p. 770.) Friedman distinguished Kincade and Kriesel on the basis that those cases involved convicted felons still under state supervision. (Friedman, at p. 857.) As the court explained, the rationale for sustaining searches in those circumstances was articulated in Samson, supra, 547 U.S. 843, upholding a search on the basis of the plaintiff's status as a parolee, in which the Supreme Court cited the requirement of "intense supervision" of such persons and the problems of "reintegration" of parolees into society. (Friedman, at p. 858, citing Samson, at p. 854.) These concerns were inapplicable in the case of a pretrial detainee. (Friedman, at p. 858.)
In a departure from all of the cases just discussed, in which the defendant's conviction or lack thereof was central to the analysis, the magistrate judge in United States v. Pool (E.D.Cal. 2009) 645 F.Supp.2d 903 (Pool), upheld the requirement imposed by amendments to the federal Bail Reform Act (18 U.S.C. § 3142(b) and (c)(1)(A)) and DNA Fingerprinting Act (42 U.S.C. § 14135a) that certain arrestees give a DNA sample as a condition of pretrial release. Pool held that "after a judicial or grand jury determination of probable cause has been made for felony criminal charges against a defendant, no Fourth Amendment or other Constitutional violation is caused by a universal requirement that a charged defendant in a felony case undergo a 'swab test,' or a blood test when necessary, for the purposes of DNA analysis to be used solely for criminal law enforcement, identification purposes." (Pool, supra, 645 F.Supp.2d at p. 917, italics added.)*fn10
Mitchell, supra, 2011 WL 3086952, a divided decision by the Third Circuit sitting en banc, reached a similar but potentially broader conclusion. Like Pool, Mitchell involved an indicted defendant who objected to providing a DNA sample. (Id. at *1.) The district court had concluded that the Fourth Amendment did not permit "warrantless, suspicionless searches" of "members of society who have not been convicted, are presumed innocent, but have been arrested and are awaiting proper trial." (United States v. Mitchell (W.D.Pa. 2009) 681 F.Supp.2d 597, 610). The Third Circuit reversed. (Mitchell, supra, 2011 WL 3086952, at *1.)
Mitchell acknowledged the " 'vast amount of sensitive information that can be mined from a person's DNA and the very strong privacy interests that all individuals have in this information.' " (Mitchell, supra, 2011 WL 3086952, at *18, quoting Amerson, supra, 483 F.3d at p. 85.) The court held, however, that the profile used in CODIS--as opposed to the sample itself--contained limited information that could be used only for identification purposes, and that any further analysis of the sample for additional private information, or misuse of such information for other purposes, was hypothetical and speculative. (Id. at *18-19.) The Mitchell court accepted the analogy employed by many courts between fingerprints and DNA profiles, finding that, as limited by the DNA Act and the current state of technology, "a DNA profile is used solely as an accurate, unique, identifying marker--in other words, as fingerprints for the twenty-first century." (Id. at *20.) Mitchell extended to the DNA context the accepted view that routine fingerprinting of persons lawfully arrested or charged with a crime is permissible under the Fourth Amendment because with probable cause for arrest, the resulting loss of liberty entailed at least some loss of rights to personal privacy. (Id. at *21.) "DNA collection occurs only after it has been determined that there is probable cause to believe that the arrestee committed a crime. In light of this probable cause finding, arrestees possess a diminished expectation of privacy in their own identity, which has traditionally justified taking their fingerprints and photographs. Likewise, because DNA profiles developed pursuant to the DNA Act function as 'genetic fingerprints' used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample." (Id. at *22, fn. omitted.)
With respect to the governmental interest in obtaining DNA samples from arrestees, Mitchell viewed DNA profiling as a better means of identification than fingerprints or photographs because an individual cannot alter or disguise his or her DNA. (Mitchell, supra, 2011 WL 3086952, at *23-24.) The court also viewed DNA profiling as serving the government's interest in a second component of "identity," described by the district court in Haskell, supra, 677 F.Supp.2d at p. 1199, as "what a person has done." (Mitchell, at *24.) Determining whether an arrestee was implicated in other crimes, the Mitchell court stated, is critical to the determination whether to order the arrestee detained pending trial. (Ibid.) Additionally, viewing DNA profiling as assisting the government in "accurate criminal investigations and prosecutions (both of which are dependent on accurately identifying the suspect)," the Third Circuit found it in the government's interest to have this information "as soon as possible." (Ibid.)
As we have said, in both Pool and Mitchell, the defendants had been indicted before law enforcement officers sought to obtain DNA samples. Whereas Pool grounded its analysis on the fact that the defendant's DNA sample was collected after a judicial or grand jury determination of probable cause for felony charges had been made (Pool, supra, 645 F.Supp.2d at p. 917), Mitchell expressly left open the question whether an arresting officer's probable cause determination could be sufficient. (Mitchell, supra, 2011 WL 3086952, at *22, fn. 22.)*fn11 This is the question presented in the present case, which involves a more extreme circumstance than Pool or Mitchell--the routine testing of arrestees before either a magistrate's determination of probable cause for arrest (§ 817), or that an offense has been committed and there is sufficient cause to believe the arrestee is guilty and should be held to answer (§ 872, subd. (a)), or a written accusation by a grand jury charging the arrestee with a public offense (§ 889). In the common situation in which the arrest is not based on a warrant, the regime mandated by our DNA Act effectively forecloses such a judicial determination prior to DNA sampling, because, as we have said, section 296.1, subdivision (a)(1)(A), requires the sample to be taken "as soon as administratively practicable after arrest." The present case thus differs from Mitchell, and the trial court's ruling in the present case would fail the test used by the magistrate judge in Pool.
The only case that has analyzed the California or federal DNA Acts as applied to arrestees who have not been subjected to a judicial probable cause determination, Haskell, supra, 677 F.Supp.2d 1187, denied a preliminary injunction to enjoin enforcement of section 296, subdivision (a)(2)(c), the provision requiring mandatory testing of arrestees.*fn12 With respect to the individual privacy interest, Haskell viewed arrestees as having a greater expectation of privacy than convicted felons, but "a lesser privacy interest than the general population." (Haskell, at p. 1197.) In particular, the court noted the Ninth Circuit's statements that "once an individual is 'lawfully arrested and booked into state custody,' he can claim no right of privacy in his identity" (ibid., quoting Kincade, supra, 379 F.3d at p. 837) and "while fingerprinting of 'free persons' is a 'sufficiently significant interference with individual expectations of privacy' to require probable cause or articulable suspicion, 'everyday "booking" procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence." (Haskell, at p. 1197, quoting Rise, supra, 59 F.3d at pp. 1559-1560.) Haskell mentioned the district court's statement in Pool that " '[p]robable cause has long been the standard which allowed an arrestee to be photographed, fingerprinted and otherwise be compelled to give information which can later be used for identification purposes' " (Haskell, at p. 1197, quoting Pool, supra, 645 F.Supp.2d at p. 910)), but glossed over the fact that the probable cause finding relied upon in Pool was that of a judge or grand jury, not that of the arresting officer.*fn13 There was no such finding in Haskell.
Haskell found that the plaintiffs had failed to articulate "how DNA differs in a legally significant way from other means of identification." (Haskell, supra, 677 F.Supp.2d at p. 1197.) In Haskell's view, the plaintiffs' arguments "that DNA is different because it is 'something of mine which is very personal,' 'the building blocks of our existence,' and implicates 'our personhood,' are emotionally stirring, but not legally compelling." (Id. at p. 1198.) Accordingly, Haskell concluded that the plaintiffs had "not shown that arrestees cannot reasonably be forced to identify themselves upon arrest through DNA evidence." (Ibid.)
As to the governmental interests, while conceding they were not as strong at the arrest stage as those identified in Kincade and Kriesel because arrestees are not under the supervision of any authority, and no evidence had been presented to show that arrestees are more likely to commit future crimes than members of the general population (Haskell, supra, 677 F.Supp.2d at p. 1198, citing Friedman, supra, 580 F.3d 847, 858, and Scott, supra, 450 F.3d at p. 874), Haskell held the government had a strong interest in identifying arrestees. Allowing that there was "some . . . logical appeal" to the argument that the government's practice of verifying a subject's identity with fingerprints before taking his DNA showed "that fingerprints are used for identification, while DNA is used for something else," Haskell rested on the fact that "the Ninth Circuit has unequivocally held that what DNA evidence does is identify." (Haskell, at p. 1199, citing Rise, supra, 59 F.3d at p. 1559; Kincade, supra, 379 F.3d at p. 837; Kriesel, supra, 508 F.3d at p. 947.)
In addition to accurate identification of the arrestee, Haskell found a government interest supportive of DNA sampling in the solution of past crimes, pointing to statistics suggesting "that arrestee submissions contribute to the solution of crimes, but not to the same degree as convicted offender submissions." (Haskell, supra, 677 F.Supp.2d at p. 1201.)*fn14 After balancing the competing considerations, Haskell concluded that "California's DNA searching of arrestees appears reasonable" because, although "[a]rrestees undoubtedly have a greater privacy interest than convicted felons," the plaintiffs had "not shown that that interest outweighs the government's compelling interest in identifying arrestees, and its interest in using arrestees' DNA to solve past crimes." (Haskell, supra, 677 F.Supp.2d at p. 1201.)
Haskell's analysis is, in our view, flawed in two respects. First, it accepts an analogy between fingerprinting and DNA testing that ignores vast differences in the amount and type of personal information each procedure reveals. Second, it adopts an expansive definition of the term "identification"--used in the DNA Act to limit authorized analysis and use of DNA--that utterly conflates the concepts of identity verification and criminal investigation. While this definition of identification, as we later explain (see discussion, post, at pp. 25-35), accurately reflects the way the term is used in the DNA Act, it is not a basis upon which the challenged search may be found reasonable within the meaning of the Fourth Amendment.
The DNA/Fingerprint Analogy
The legitimacy of the comparison between the fingerprinting process and DNA sampling is at the heart of the caselaw on DNA testing. Haskell agreed with courts that have viewed the two procedures as analogous. (Haskell, supra, 677 F.Supp.2d at pp. 1197-1198, quoting Rise, supra, 59 F.3d at p. 1559 ["the 'information derived from the blood sample is substantially the same as that derived from fingerprinting' "]; Pool, supra, 645 F.Supp.2d at p. 911 [" 'DNA sampling is analogous to taking fingerprints as part of the routine booking process upon arrest' "]; United States v. Amerson, supra, 483 F.3d at p. 87 [" '[t]he government justification for this form of identification, therefore, relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods' "].) Haskell focused primarily on the DNA profile, which is derived from " 'junk' " DNA, and ignored the differences between a DNA profile and a DNA sample, including that the latter contains the entire human genome.
In general, the cases upholding DNA testing statutes have dismissed concerns about the extent of the personal information contained in DNA samples by limiting their attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability. For example, Mitchell rejected the district court's view that comparing fingerprinting to DNA testing was " 'pure folly' " because of the nature and amount of information revealed by the latter, emphasizing that only the profile, not the sample, is available in CODIS: "Given the protections built into the [federal] DNA Act, the Government's stated practice of only analyzing 'junk DNA,' and the current limits of technology, the information stored in CODIS serves only an identification purpose." (Mitchell, supra, 2011 WL 3086952, *19-20.) As the Mitchell dissenters pointed out, this focus on the use of DNA ignores the full extent of the search that has taken place. (Id. at *32 (dis. opn. of Rendell, J.).)*fn15
Even focusing on the DNA profile alone, the analogy to fingerprints is blind to the nature of DNA. Courts are well aware that "[r]ecent studies have begun to question the notion that junk DNA does not contain useful genetic programming material" (Kincade, supra, 379 F.3d at p. 818, fn. 6, citing Gibbs, The Unseen Genome: Gems Among the Junk, Scientific American, Nov. 2003, at p. 29; see Mitchell, supra, 2011 WL 3086952, *32 (dis. opn. of Rendell, J.)) and that an intense debate on this subject is now taking place in scientific and legal communities (see Cole, Is The "Junk" DNA Designation Bunk? (2007) 102 Nw. U. L. Rev. Colloquy 54). And even if the 13 loci used in the genetic profile uploaded into the state's DNA data bank and CODIS do not now provide any significant amount of personal, private data, scientific advances will undoubtedly increase the quantity and nature of information that can be extracted from that limited genetic information. (See Kriesel, supra, 508 F.3d at p. 947 ["with advances in technology, junk DNA may reveal far more extensive genetic information"].)
In any case, the private information that can be extracted from noncoding DNA is not the only or even the greatest danger to privacy. DNA profiles are derived from blood specimens, buccal swab samples and other biological samples containing the entire human genome, which DOJ's laboratory is required to collect and store. (§§ 295, subds. (h), (i)(C), 295.1, subd. (c).) Like the DNA laws of almost every other state and federal law, the DNA Act is silent as to how long these specimens and samples may be kept,and it is reasonable to expect they will be preserved long into the future, when it may be possible to extract even more personal and private information than is now the case.*fn16 "[T]he advance of science promises to make stored DNA only more revealing." (Kincade, supra, 379 F.3d at p. 842, fn. 3 (conc. opn. of Gould, J.).) Moreover, as we later explain, the Act places few restrictions on the law enforcement uses to which such information may be put. (See discussion, post, at pp. 35-42.) This raises questions both about the kind of personal and private information that may be derived from the DNA samples in the DOJ's possession, and the uses of that biometric data as scientific developments increase the type and amount of information that can be extracted from it. For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify various crime control measures. (See Joh, Reclaiming "Abandoned DNA," supra,100 Nw. U. L.Rev. at p. 878.) Fingerprinting presents no comparable threat to privacy.
Another distinction significant in considering the privacy interests at stake is that DNA testing is viewed by society as a process reserved exclusively for criminals. Because many professions and branches of civil service require fingerprinting, the practice is "not in itself a badge of crime." (United States v. Kelly (1932) 55 F.2d 67, 70 (Kelly); see also Thom v. New York Stock Exchange (S.D.N.Y. 1969) 306 F.Supp. 1002, 1007 ["The day is long past when fingerprinting carried with it a stigma or any implication of criminality"].) In contrast, society views DNA sampling not just as a badge of crime, but as a badge of the most dangerous crimes: "DNA is used most commonly, both in the public perception and in reality, to detect more heinous crimes such as rape and murder." (Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling (2010) 19 Wm. & Mary Bill Rts. J. 475, 496 (Note).)
The view of DNA testing as analogous to fingerprinting is also problematic because the practice of fingerprinting on arrest, though routine, has never been subjected to Fourth Amendment analysis under the tests that must be used to analyze the constitutionality of DNA sampling. By the time the totality of the circumstances test was announced, "fingerprinting had long been informally deemed 'routine.' " (Note, supra, 19 Wm. & Mary Bill Rts. J., at p. 510.) "Because the great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence ushered in by Katz v. United States [citation omitted], it proceeded unchecked by any judicial balancing against the personal right to privacy." (Kincade, supra, 379 F.3d 813, 874 (dis. opn. of Kozinski, J.).) As has been noted, the "historical basis for allowing fingerprinting is not entirely clear." (United States v. Pool, supra, 621 F.3d at p. 1230 (conc. opn. of Lucero, J.).) But the fact that fingerprinting became routine without being subjected to analysis under the Fourth Amendment is no reason to use it as the basis of a conclusion that DNA testing survives that analysis.
In fact, the ease with which some courts move from fingerprinting to DNA testing to embrace the undeniable law enforcement advantages of the newer technology raises a substantial red flag. Since Fourth Amendment analysis centers on what society considers reasonable expectations of privacy, it both reflects current values and shapes future ones. (See Kincade, supra, 379 F.3d at p. 873, dis. opn. of Kozinski, J.) In Kincade, which dealt with DNA testing only of the limited population of individuals convicted of specified felony offenses, both the concurring and dissenting judges expressed concern that the reach of the DNA statutes would be extended. As Judge Kozinski cogently noted, "when that inevitable expansion comes, we will look to the regime we approved today as the new baseline and say, this too must be OK because it's just one small step beyond the last thing we approved. . . . My colleagues in the plurality assure us that, when that day comes, they will stand vigilant and guard the line, but by then the line--never very clear to begin with--will have shifted." (Ibid.) Since Kincade, courts' approval of DNA testing of certain convicted felony offenders has been followed by approval of testing of all convicted felony offenders (Kriesel, supra, 508 F.3d 941), testing of individuals who have been charged with felony offenses (Pool, supra, 645 F.Supp.2d 903) and, with Haskell, arrestees who have not yet been subjected to a judicial determination of probable cause. Each step in this process has facilitated the next reduction of "reasonable expectations of privacy."
The Conflation of Identification and Investigation
In the context of fingerprinting, courts have drawn a distinction between identification--fingerprints taken "to verify that the person who is fingerprinted is really who he says he is," and investigation--fingerprints taken "to connect [the person fingerprinted] to a crime with which he was not already connected." (U.S. v. Garcia-Beltran (9th Cir. 2004) 389 F.3d 864, 867.) Fingerprints that are validly obtained for purposes of identification can later be used as evidence or in an investigation. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 865 (Loder).)*fn17 Fingerprints obtained as a result of an illegal arrest are not subject to suppression if they were taken "solely to establish [the arrestee's] true identity." (U.S. v. Garcia-Beltran, at pp. 865-866.) But suppression is required if fingerprints were taken as a result of an illegal arrest for an " 'investigatory' purpose, i.e., to connect [the arrestee] to alleged criminal activity." (Id. at p. 865; see Hayes v. Florida (1985) 470 U.S. 811; Davis v. Mississippi (1969) 394 U.S. 721.) As one commentator has noted, courts have commonly accepted "inquiries that merely identify arrestees" as an "identification exception" to the requirement of a warrant and reasonable suspicion, but "investigatory use of biometric data is not what underlies the 'identification exception' "; that exception "might be better denominated a 'true identity' exception, since it merely relates to the government's need to know precisely who it has arrested." (Kaye, The Constitutionality of DNA Sampling on Arrest (Winter 2001) 10 Cornell J. of L. & Pub. Policy 456, 487-488.)
Haskell's analysis of the DNA Act, however, employed an uncommonly capacious definition of "identification," as that word is used in the provision of the Act mandating that DNA analysis be performed "only for identification purposes" (§ 295.1, subd. (a)). "Put simply," Haskell said, "identification means both who that person is (the person's name, date of birth, etc.) and what that person has done (whether the individual has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc.). Who the person is can often be checked using fingerprints, but that does not preclude the government from also checking that individual's identity in other ways. An individual might wear gloves at some point, thwarting fingerprint identification, or wear a mask, thwarting the use of photographs. The more ways the government has to identify who someone is, the better chance it has of doing so accurately. . . . The second component of identity, what the person has done, is no less important. Nor is it new. Plaintiffs could point the Court to no case holding that once an individual has been identified through his fingerprints, the government was barred from running those same fingerprints against crime scene samples for investigative purposes (or from showing individuals' photographs to victims or witnesses)." (Haskell, supra, 677 F.Supp.2d at pp. 1199-1200, italics added.) As we have noted, the Mitchell court adopted Haskell's expansive definition of "identification" in its analysis of the federal DNA Act. (Mitchell, supra, 2011 WL 3086952, at *24.)
The first component of the Haskell court's definition of "identification"--"who that person is"--addresses the government's interest in establishing the true identity of an arrestee. In this aspect, the definition comports with common understanding of the term, which is defined by the Oxford English Dictionary as the "action or process of determining what a thing is or who a person is." (Oxford English Dict. (2nd ed. 1989) p. 619, col. 1.) Identification in this sense was from the outset, and remains, the purpose of fingerprinting arrestees. The police began using fingerprinting as part of the booking process in the early 1900s, as a useful and reliable way to identify arrestees at a time when identifying documents were easily forged. (Note, supra, 19 Wm. & Mary Bill Rts. J. at pp. 484-485.) Fingerprints are unique identifiers of an individual. (Mitchell, supra, 681F.Supp.2d at p. 608.) Fingerprinting was viewed as a useful means of identification "especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification." (Kelly, supra, 55 F.2d at p. 69.)
DNA collection does not serve this purpose. The sampling process mandated by the DNA Act is not an efficient means of establishing who a person is, because DNA taken upon arrest cannot be used immediately for that purpose. Before law enforcement can obtain information about an arrestee from DNA testing pursuant to the DNA Act, the DNA sample must be analyzed and a DNA profile created and run through a database. (CODIS and NDIS Fact Sheet, Federal Bureau of Investigation http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet [as of July 14, 2011].) Haskell noted the government's assertion that " 'the average processing time for arrestee samples is currently about 31 calendar days.' " (Haskell, supra, 677 F.Supp.2d at p. 1201.) By contrast, fingerprints submitted electronically to the national fingerprint and criminal history system administered by the FBI yield a response in about 10 minutes. (Integrated Automated Fingerprint Identification System (IAFIS), Federal Bureau of Investigation http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis [as of July 20, 2011].)*fn18 Additionally, once in the data bank, the DNA profile is not identified by name or case information; only after a hit is made can the law enforcement agency obtain information from the laboratory that submitted the sample and learn the identity of the individual from whom the sample was taken. (Haskell, supra, 677 F.Supp.2d at pp. 1190-1191.)
California's protocol for DNA collection and analysis confirms that DNA is not used to verify who a person is. To begin with, far from relieving law enforcement agencies of the need to take fingerprints, the Act requires collection of a right thumb print and a full palm print of each hand as well as a DNA sample. (§ 296, subd. (a)(2)(C).) The first step in collecting a DNA sample by means of the "standard DNA collection kit" provided by the DOJ to local and state law enforcement agencies is to "identify the subject" (http://ag.ca.gov/fbs/content/faq.php#mechanics (FAQ Collection Mechanics, Question 1.1), indicating the immediate means of "identification" is not the subject's DNA. Further demonstrating this point, since DNA samples are not taken from arrestees who have already had samples taken (Haskell, supra, 677 F.Supp.2d at p. 1190), the arrestee's identity must be verified by other means before a DNA sample can be collected. (http://ag.ca.gov/fbs/content/faq.php#mechanics [FAQ DNA Sample Collection: Who & When, Question 4].)*fn19 Accordingly, the "FAQ" section of the California Attorney General's website concerning collection of DNA samples states that, in implementing the requirement that "collection take place 'as soon as administratively practicable after arrest[,] . . . [t]he main issue will be the ability of the agency to access the rap sheet or some other resource to determine if samples already have been collected (through a county-wide database, for instance) and to identify the individual, preferably via prints and CAL-ID" (http://ag.ca.gov/fbs/content/faq.php#mechanics [FAQ DNA Sample Collection: Who & When, Question 4] (emphasis added).) In sum, DNA profiles are neither necessary nor helpful for verifying who a person is at the time of arrest. Indeed, the fact that DNA testing cannot be employed to verify a person's true identity at the time of arrest demonstrates that collection of a DNA sample at this time has another purpose.
Haskell's suggestion that DNA is a useful means of identification because "an individual might wear gloves at some point, thwarting fingerprint identification, or wear a mask, thwarting the use of photographs" (Haskell, supra, 677 F.Supp.2d at p. 1199) illustrates the confusion created by the different meanings Haskell attributed to the term "identification." The possibilities cited in Haskell relate to the investigatory value of DNA sampling, not its use for identification in the sense of "who that person is." Haskell's example referred to the ability of an offender to avoid leaving evidence at a crime scene and thereby undermine police efforts to find the perpetrator. As Kincade observed, "unlike fingerprint evidence (which can be effectively masked by wearing gloves), there is no simple way to avoid leaving DNA evidence at the scene of a crime. Just as DNA permeates blood, semen, and saliva, it is recoverable from hair and epidermal cells--which even the most sophisticated criminals cannot help but leave behind." (Kincade, supra, 379 F.3d at p. 838, fn. 37.) Mitchell made the same point, finding DNA a better means of identification than fingerprints or photographs because of criminal offenders' ability to conceal or disguise their identity. (Mitchell, supra, 2011 WL 3086952, at *23-24.) But fingerprinting to confirm identity at booking is not subject to such concealment: An arrestee cannot mask his or her identity by wearing gloves while being fingerprinted by the police.
Haskell explained that the "what a person has done" aspect of "identification" refers to "whether the individual has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc." (Haskell, supra, 677 F.Supp.2d at p. 1199.) However, determining whether an arrestee has "committed an as-yet unsolved crime across town" entails an investigation into evidence of crime unrelated to the offense for which the arrestee has been arrested. When DNA is taken from an arrestee and checked against a data bank for unsolved crimes, there is no particularized suspicion that the arrestee committed any of those unsolved crimes; the link to unsolved crime is created by use of the DNA sample. There can be no doubt that this use of DNA samples is for purposes of criminal investigation rather than simple identification. Since DNA profiles do not provide an immediate means of verifying identity, they are used primarily, if not exclusively, to search for linkages to unsolved crimes and not to accurately identify the arrestee.
While Haskell's inclusion of criminal investigation in the meaning of the word "identification" seems to us too contrived, it is unquestionably consonant with the purpose of the DNA Act: Proposition 69 was clearly designed to permit the use of an arrestee's DNA for investigative purposes. The ballot arguments in favor of the measure relied heavily on crime-solving promises and concerns, emphasizing the utility of DNA in investigating and solving crime. The ballot argument opened dramatically: " 'In California, the remains of a boy missing for two decades are finally identified. Two cold murders are solved in Kansas. And in Texas, a serial sexual predator is captured. The cases are cracked thanks to technology police are calling the fingerprints of the 21st century.' (Associated Press, March 2004) (italics omitted).)" (Ballot Pamp., Gen. Elec. (Nov. 2, 2004), argument in favor of Prop. 69, p. 62.) The ballot argument continued with further crime-solving success headlines: " 'Hunch leads to Rape Suspect's Arrest; Detective obtains DNA sample from a convicted burglar that links him to attacks on 11 women.' (LA Times, April 2004). [¶] 'DNA tests clear man of slayings; man jailed since late 2002 on charges of killing his ex-girlfriend and her sister.' (Bakersfield Californian, May 2004)." (Ballot Pamp., Gen. Elec. (Nov. 2, 2004), argument in favor of Prop. 69, p. 62, italics omitted.) Proponents asserted that DNA evidence "identifies criminals and protects the innocent" and touted the benefits of an "all-felon database," asserting that " '[t]he chances of solving a rape or murder increase by 85% with an all-felon DNA database (California State Sheriffs' Association President Robert Doyle)." (Ballot Pamp., Gen. Elec. (Nov. 2, 2004), argument in favor of and rebuttal to argument against Prop. 69, pp. 62-63.) Proponents claimed taking a DNA sample at booking "is more efficient and helps police conduct accurate investigations. No wasting time chasing false leads . . . ." (Id. at p. 62.) According to proponents, "[Proposition] 69 can prevent thousands of crimes by taking dangerous criminals off the streets," and California's existing DNA database was "too small, unable to deal with the thousands of unsolved rapes, murders, and child abductions." (Ibid.)*fn20
Although Proposition 69 twice declared the state's compelling interest in "accurate identification of criminal offenders," the findings section of the proposed law confirms that its critical purpose was crime-solving. (Ballot Pamp., Gen. Elec. (Nov. 2, 2004), text of Prop. 69, p. 135.) The findings identified a "critical and urgent need" to furnish law enforcement "with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongfully suspected or accused of crime." (Ibid.) It was declared that law enforcement "should be able to use the DNA Database and Data Bank Program to substantially reduce the number of unsolved crimes; to help stop serial crime by quickly comparing DNA profiles of qualifying persons and evidence samples with as many investigations and cases as necessary to solve crime and apprehend perpetrators. . . ." (Ibid.) The findings stated that expansion of the DNA Database and Data Bank Program was "the most reasonable and certain means" to solve crime effectively and to increase rapidly the number of "cold hits." (Ibid.)*fn21
In fact, the text of the DNA Act does not restrict the investigatory uses to which DNA specimens, samples, and profiles may be put by law enforcement agencies. Despite the provision in the DNA Act that the DOJ "shall perform DNA analysis . . . only for identification purposes" (§ 295.1, subd. (a)), other provisions authorize release of DNA samples and profiles collected under the Act "to law enforcement agencies," including "district attorneys' offices and prosecuting city attorneys' offices" (§ 299.5, subd. (f)), and "to a jury or grand jury, or in a document filed with a court or administrative agency, or as part of a judicial or administrative proceeding, or for this information to become part of the public transcript or record of proceedings when, in the discretion of law enforcement, disclosure is necessary because the DNA information pertains to the basis for law enforcement's identification, arrest, investigation, prosecution, or exclusion of a particular person related to the case." (§ 299.5, subd. (k), italics added.) The DNA Act thus expressly authorizes the use of government stored DNA, including samples containing the entire human genome, not to "identify" a person in the sense of verifying who he or she is, but to assist with the "arrest, investigation, prosecution, or exclusion" of a person. And because the DNA Act authorizes retention of DNA samples as well as the profiles derived from them, those retained samples can be used to criminally investigate persons whose DNA was obtained upon arrest many years earlier, even if they were never criminally charged or were acquitted.
In short, the statement in the DNA Act that DOJ "shall perform DNA analysis and other forensic identification analysis . . . only for identification purposes" (§§ 295.1, subd. (a), 295, subd. (d)), could not have been intended to and does not limit the investigatory use of DNA by law enforcement agencies. Apparently, the only limitation imposed by the Act's references to "identification" is that it prohibits analysis and use of DNA for non-law enforcement purposes, relating to such things as an individual's health, propensity for certain diseases or conduct, gender, or race. (See Kincade, supra, 379 F.3d at p. 837; id. at p. 842, fn. 3 (dis. opn. of Gould, J.).) By merging the ordinarily distinct concepts of verification of identity and criminal investigation, the DNA Act authorizes suspicionless criminal investigation of arrestees in the name of "identification," absent any true need or ability to use the material collected to verify identity at the time of arrest.*fn22 Unlike the case with fingerprints, upholding the collection of DNA from arrestees on the theory that it is acquired purely for identification purposes is delusory. The value and primary use of DNA is investigatory; the DNA may be useful for determining who a person is, but this is not the use to which it is put at the time of arrest and it is not necessary for that purpose.
In addition, it is unclear how much the DNA testing of arrestees at this early stage even supports the investigative function that is the only governmental interest it actually serves. The Attorney General rests heavily on the proposition that such testing "is an important and effective law enforcement tool." Asserting that adult felony arrestees "more likely than not become tomorrow's convicted offenders," the Attorney General points to statistics showing that arrestee sampling "has dramatically increased the number of database hits to unsolved crimes." (See California Department of Justice, Proposition 69 (DNA) FAQ, Effects of the All Adult Arrestee Provision (Prop. 69 FAQ), http://ag.ca.gov/bfs/prop69php.)*fn23 However, a recent analysis of DNA profiling and databases, including California's, suggested that this governmental interest may not be as great as the Attorney General maintains. (RAND Corporation, Center on Quality Policing, Toward a Comparison of DNA Profiling and Databases in the United States and England (2010) (RAND study).) This study cautioned that "hit rates per se are not an especially good measure of database performance" (id. at p. 20), and that "[i]n order to improve public safety and improve efficiency of the criminal justice system, we would need to know whether a hit resulted in an offender being apprehended and prosecuted (and whether the offender would have been apprehended as quickly--or at all--but for the database)" (id. at p. 17). Even focusing on hit rates, however, analysis revealed that "[d]atabase matches are more strongly related to the number of crime-scene samples than the number of offender profiles in the database." (Id. at p. 20) The RAND study suggested that "[i]f aiding investigations is indeed the goal, it would seem to be a wiser use of California's resources to devote them to analyzing the backlog of crime-scene evidence rather than keeping pace with felony-arrestee samples," and "a more effective means of increasing hit rates is to increase the number of crime-scene profiles uploaded into the database rather than continue to add more suspects and arrestees (and convicts to lesser crimes) to the database net. The latter does improve the hit rate somewhat, but the former improves it much more." (Ibid.)*fn24
Aside from such questions about the validity and significance of hit rate statistics, the need for arrestee databases is almost certainly diminished by the number of conviction-offender databases that are in place. "Many of the people who are arrested already have convictions and should be in a convicted-offender database. Arrestee databanking offers no new information about these individuals. Of the remaining arrestees without previous convictions, many will be convicted of the crime for which they were arrested. Even without arrestee databanking, their genotypes would be added to the convicted-offender database, albeit at a later time. Of these, many will not be released pending trial in any event. Of those who are released, many will not commit crimes. Consequently, the total impact of taking DNA from arrestees could be small." (Kaye, The Constitutionality of DNA Sampling on Arrest, supra, 10 Cornell J. of L. and Pub. Policy, at p. 502, fn. omitted.)
What the DNA Act authorizes is the warrantless and suspicionless search of individuals, before a judicial determination of probable cause to believe they have committed a crime, for evidence of crime unrelated to that for which they have been arrested. The United States Supreme Court has never permitted suspicionless searches aimed at uncovering evidence of crime outside the context of convicted offenders. (Samson, supra, 547 U.S. 843 [suspicionless search of parolee].) Indeed, "[t]he suspicionless search is the very evil the Fourth Amendment was intended to stamp out." (Id. at p. 858 (dis. opn. of Stevens, J.).)
In City of Indianapolis v. Edmond (2000) 531 U.S. 32, 34 (Edmond), which invalidated a city's highway checkpoint program "whose primary purpose [was] the discovery and interdiction of illegal narcotics," the Supreme Court summarized its views on suspicionless searches as follows: "The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). While such suspicion is not an 'irreducible' component of reasonableness, Martinez-Fuerte, 428 U.S. [543,] 561 [(1976)], we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve 'special needs, beyond the normal need for law enforcement.' See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of student-athletes); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives' Assn., [supra,] 489 U.S. 602 . . . (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. See, e.g., New York v. Burger, 482 U.S. 691, 702-704 (1987) (warrantless administrative inspection of premises of 'closely regulated' business); Michigan v. Tyler, 436 U.S. 499, 507-509, 511-512 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534-539 (1967) (administrative inspection to ensure compliance with city housing code). [¶] We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, [supra, 517 U.S. 806], and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In addition, in Delaware v. Prouse, 440 U.S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing." (Edmond, supra, 531 U.S. at pp. 37-38.)
Edmond found the checkpoint program violated the Fourth Amendment because its "primary purpose" was "to uncover evidence of ordinary criminal wrongdoing," stating: "We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." (Edmond, supra, 531 .S. at pp. 41-42, 44.)
The Court considered another program based on suspicionless searches in Ferguson v. Charleston (2001) 532 U.S. 67, which involved a state hospital's policy of testing pregnant patients for cocaine and referring positive test results to law enforcement for prosecution. (Id. at pp. 70-73.) Observing that "the Charleston prosecutors and police were extensively involved in the day-to-day administration of the policy," the Court concluded that "[w]hile the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal." (Id. at pp. 82-83, fn. omitted.) The hospital's "performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes," without the patient's consent, violated the Fourth Amendment's "general prohibition against nonconsensual, warrantless, and suspicionless searches." (Id. at pp. 69-70, 86.)
In Samson, supra, 547 U.S. at page 847, the Court upheld the suspicionless search of a parolee by a law enforcement officer, as authorized by section 3067, which requires a parolee to "agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." The Court noted that "parolees are on the 'continuum' of state-imposed punishments," with fewer expectations of privacy than probationers, "because parole is more akin to imprisonment than probation is to imprisonment." (Id. at p. 850.) " 'The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.' Morrissey [v. Brewer (1972) 408 U.S. 471,] 477. 'In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.' Pennsylvania Bd. of Probation and Parole v. Scott, 524U.S. 357, 365 (1998).' " (Samson, at p.850.) The parolee in Samson "did not have an expectation of privacy that society would recognize as legitimate" because of his "status as a parolee, 'an established variation on imprisonment,' . . . including the plain terms of the parole search condition[.]" (Samson, at p.852, quoting Morrissey v. Brewer, supra, 408U.S. at p. 477.)
At the same time, Samson found the government had "an ' "overwhelming interest" ' in supervising parolees because 'parolees . . . are more likely to commit future criminal offenses' " (Samson, supra, 547 U.S. at p.853, quoting Pennsylvania Bd. of Probation and Parole, supra, 524U.S. at p.365) and the government's "interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment." (Samson, at p. 853.) The Court noted empirical evidence in the case demonstrating a 68 to 70 percent recidivism rate for California's parolee population and approved the California Legislature's determination that "a requirement that searches be based on individualized suspicion would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders." (Id. at p. 854.) Stating that "[t]he touchstone of the Fourth Amendment is reasonableness, not individualized suspicion," Samson found the challenged search constitutional "[i]n light of California's earnest concerns respecting recidivism, public safety, and reintegration of parolees into productive society." (Id. at p. 855, fn. 4.)
The present case, like Haskell, involves a programmatic warrantless search of all arrestees' DNA, without individualized suspicion and prior to any judicial determination of probable cause, much less guilt. As we have seen, the primary purpose and use of the DNA samples collected is to determine whether the arrestee can be connected to a past unsolved crime and to create a databank through which he or she may now or in the future be connected to a new offense. Because the DNA samples are collected for purposes of investigating criminal offenses, the rationale of the special needs cases does not justify the suspicionless search (see Edmond, supra, 531U.S. at p. 34), and the Attorney General does not ask us to affirm on that rationale. To paraphrase Edmond, we cannot sanction warrantless searches "justified only by the generalized and ever-present possibility that" they may reveal "any given arrestee" has committed an as-yet unsolved crime or may commit a crime in the future. (See id. at pp. 41-42, 44) Nor can the suspicionless search be justified by the concerns identified in Samson, supra, 547 U.S. 843. Arrestees are not ordinarily subject to mandatory search conditions, as are parolees; nor do arrestees suffer the high recidivism rate empirically attributable to parolees. (Id. at pp. 853-854.) Not having been convicted of any offense, arrestees therefore have a far greater expectation of privacy than parolees, and the government lacks either a supervisory interest or a basis for concern regarding recidivism.
There is also the risk of abuse. The Samson Court noted, "[t]he concern that California's suspicionless search system gives officers unbridled discretion to conduct searches, thereby inflicting dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society, is belied by California's prohibition on 'arbitrary, capricious or harassing' searches. See [People v.] Reyes, 19 Cal. 4th [743,] 752, 753-754 [(1998)]; People v. Bravo, 43 Cal.3d 600, 610 (1987) (probation); see also Cal. Penal Code Ann. §3067(d) (West 2000) ('It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment')." (Samson, supra, 547 U.S. at p. 856.) A parolee who can establish that a search was arbitrary, capricious or harassing, can avoid the consequence of the improper search by having the evidence suppressed. (People v. Reyes, at pp. 753-754; People v. Clower (1993) 16 Cal.App.4th 1737, 1741-1743.)
An arrestee, however, does not have this remedy. The suspicionless search called for in section 296.1 requires a DNA sample to be taken "immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest" (§ 296.1, subd. (a)(1)(A)), when the legal basis for arrest is usually only the arresting officer's determination of probable cause. Even if the arrest is subsequently determined by a judicial officer to have been without sufficient cause, the DNA sample will have been taken and a profile developed, and the use of the profile and preservation of the sample will continue unless and until the arrestee succeeds in the cumbersome process of having them expunged. Without questioning the integrity of most law enforcement officers, it is not difficult to think that the DNA Act might provide an incentive to pretextually arrest a person from whom the police desire a DNA sample. While the actual taking of DNA samples from arrestees is not a matter of discretion, there is no check on the discretion of the officers who make the arrests that create the opportunity for DNA sampling until after the sample has been taken and may already have been used for investigative purposes.*fn25
The Attorney General attempts to downplay the absence of a judicial determination of probable cause, arguing that "loss of freedom of choice and privacy are 'inherent incidents' of felony arrest," and the " 'presumption of innocence' does not entitle arrestees to claim the full protection of Fourth Amendment privacy guarantees available to ordinary citizens." Appellant explicitly acknowledges that arrestees' privacy expectations are "less than members of the general public." He argues only that his privacy rights are greater than those of prisoners, parolees and probationers.
The Attorney General also relies upon the statement in In re York (1995) 9 Cal.4th 1133, that the " 'presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; . . . it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.' " (In re York, at p. 1148, quoting Bell v. Wolfish (1979) 441 U.S. 520, 533.)*fn26 The salient point in York was that a lawful arrest allows restrictions on the liberty to which a citizen is ordinarily entitled. But the mere fact of an arrest does not render it lawful, a judgment that can be made only after a judicial determination of probable cause. Regardless of the significance one attaches to the "presumption of innocence," at the time appellant was asked and refused to provide a DNA sample no judicial officer had determined whether there was probable cause to believe he had committed a crime.
The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to diminish the privacy guaranteed by the Fourth Amendment. The amount of stigmatizing information that can be extracted from the noncoding DNA currently analyzed for the DOJ database is now a subject of debate, but there is no doubt that an extraordinary amount of private personal information can be extracted from the DNA samples and specimens seized by the police without a warrant, collected and indefinitely retained by the DOJ. The profiles derived from these DNA samples are passed on to the FBI for placement in CODIS and, like the samples themselves, may also be disclosed to and used by criminal law enforcement officers and agencies to solve crimes other than those for which a person was arrested.
The touchstone of our analysis under the Fourth Amendment is always " 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109, quoting Terry v. Ohio (1968) 392 U.S. 1, 19.) Under the applicable totality of the circumstances test of reasonableness, we must balance the invasion of appellant's interest in privacy against the government's interest in seizing biometric material from his body without a warrant supported by probable cause and based solely upon appellant's status as a mere arrestee.
On the continuum of privacy rights ranging from ordinary citizens, with full expectation of privacy, to incarcerated prisoners, with a very limited expectation of privacy (see Samson, supra, 547 U.S. at p. 850), all courts that have addressed the issue agree that the privacy rights of arrestees are greater than those of probationers, parolees or convicted prisoners. And even within the category of arrestees, an individual such as appellant, who has not yet been the subject of a judicial determination of probable cause, falls closer to the ordinary citizen end of the continuum than one as to whom probable cause has been found by a judicial officer or grand jury. A significant percentage of all felony arrestees are not in fact convicted; whatever the basis of the initial arrest, many of these arrestees are legally innocent of any crime.*fn27 Yet their DNA profiles remain in the state and federal databanks, and their DNA specimens and samples in the DOJ Laboratory, in perpetuity, unless and until they are able to successfully negotiate a lengthy and burdensome expungement process that is far from guaranteed to succeed.
Against this intrusion into individual privacy rights, the governmental interest in DNA testing at this early juncture in the criminal process is problematic. The asserted interest in identification is undermined by the fact that testing under the DNA Act is not, and cannot be, used to immediately verify who an arrestee is, while the investigative use of DNA testing at this stage strains constitutional limitations and appears to be of incremental utility at best. The governmental interest advanced most vigorously by the Attorney General is the effectiveness of DNA testing in solving crimes. But even if DNA testing of arrestees was demonstrably valuable to law enforcement, the effectiveness of a crime fighting technology does not render it constitutional. (See, e.g., City of Indianapolis v. Edward, supra, 531 U.S. at p. 42, Ferguson v. City of Charleston, supra, 532 U.S. at pp. 83-84.) As Chief Justice Traynor put it, "a search, whether incident to an arrest or not, cannot be justified by what it turns up." (People v. Brown (1955) 45 Cal.2d 640, 643.) Because "[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusion on the mere chance that desired evidence might be obtained" (Schmerber, supra, 384 U.S. at pp. 769-770), "the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment" (Mincey v. Arizona (1978) 437 U.S. 385, 393; Arizona v. Gant (2009) 129 S.Ct. 1710, 1723).
For the reasons we have set forth, we conclude 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 the Fourth Amendment of the United States Constitution.
The judgment is reversed.