California Court of Appeals, First District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Superior Court of City and County of San Francisco, No. SCN 207818 Hon. Carol Yaggy
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Jonathan Soglin, J. Bradley O'Connell and Kathryn Seligman, under appointments by the Court of Appeal, for Defendant and Appellant:
American Civil Liberties Union Foundation Michael T. Risher, Paul Hastings, Peter C. Meier, Eric A. Long, Jamie L. Williams, University of California Hastings College of the Law, Professor Joseph R. Grodin, Electronic Frontier Foundation, Hanni Fakhoury, California Public Defenders Association, California Attorneys for Criminal Justice &, Los Angeles County Public Defender, Linda F. Robertson, Jennifer Friedman, Federal Public Defender of the Eastern Dist. of CA, National Assoc. of Criminal Defense Lawyers, Daniel J. Broderick, David Porter and Rachelle D. Barbour as Amici Curiae on behalf of Defendant and Appellant.
Edmund G. Brown Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Joyce Blair, Stan Helfman, Jeffrey M. Laurence and Enid A. Camps, Deputy Attorneys General, for Plaintiff and Respondent:
Fulbright & Jarowski, Tillman James Breckenridge and Jonathan S. Franklin, for DNA Saves as Amicus Curiae on behalf of Plaintiff and Respondent.
Steve Cooley, District Attorney, Irene Wakabayashi, Phyllis C. Asayama and Roberta Schwartz, Deputy District Attorneys; California District Attorneys Association and W. Scott Thorpe as Amici Curiae on behalf of Plaintiff and Respondent.
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),  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); see § 296, subd. (a)(2)(C).) In a prior opinion, we held that the seizure of appellant’s DNA shortly after his arrest, 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 right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. (People v. Buza[*] (Cal.App.).) The case now returns to us with directions from the California Supreme Court to vacate our prior decision and reconsider the matter in light of Maryland v. King (2013) 569 U.S. ___ [186 L.Ed.2d 1, 133 S.Ct. 1958] (King).
We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.
FACTS AND PROCEEDINGS BELOW
Shortly after 3:00 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, 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 and Rehabilitation 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 databank program.
After this court reversed the conviction on count 4, the California Supreme Court granted respondent’s petition for review (People v. Buza[*]), held the case pending the United States Supreme Court’s decision in King, supra, 569 U.S. at p.___ [133 S.Ct. 1958], then returned it to us for reconsideration. (People v. Buza, July 10, 2013, S196200.)
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, p. 2680.) In 1998, the Legislature enacted the DNA Act (§§ 295-300.3; Stats. 1998, ch. 696, § 2, p. 4571), which required “DNA and forensic identification data bank samples” from all persons convicted of specified offenses. (§ 295, subd. (b)(2).) 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 [99 Cal.Rptr.2d 220].)
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.) The Act directs the DOJ to analyze the DNA “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 not known to be associated with any particular genetic trait, disease or predisposition. (King, supra, 569 U.S. at pp.___-___, ___ [133 S.Ct. at pp. 1966-1967, 1968]; Cal. DOJ Bureau of Forensic Services DNA Frequently Asked Questions (FAQ), Searching the CAL-DNA Data Bank and CODIS, Question 3 <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014].) “[F]orensic analysis focuses on ‘repeated DNA sequences scattered throughout the human genome, ’ known as ‘short tandem repeats’ (STRs). [(J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) at pp. 147-148.)] The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as ‘alleles, ’ [(id., at p. 25)]; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve present technology, but even now STR analysis makes it ‘possible to determine
whether a biological tissue matches a suspect with near certainty.’ ” (King, 569 U.S. at p.___[133 S.Ct. at p. 1967], quoting District Attorney's Office for Third Judicial Dist. v. Osborne (2009) 557 U.S. 52, 62 [174 L.Ed.2d 38, 129 S.Ct. 2308].)
The profile derived from the DNA sample is uploaded into the state’s DNA data bank, which is part of the national Combined DNA Index System (CODIS),  and can be accessed by local, state and federal law enforcement agencies and officials. (Brochure, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure> [as of Dec. 3, 2014]; FAQ, supra, Searching the CAL-DNA Data Bank and CODIS <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014].) When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a “hit, ” the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].) The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. (Ibid.) CODIS also performs weekly searches of the entire system. (The FBI and DNA, Part 1
<http://www.fbi.gov/news/stories/2011/november/dna_112311> [as of Dec. 3, 2014].) 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. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].)
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 neither quick nor guaranteed. An arrestee may request expungement if the relevant charges are dropped before adjudication, after the statute of limitations for filing an accusatory pleading has run, or after being found factually innocent or not guilty of the offense. (§ 299, subd. (b)(1), (3), (4).) The arrestee must submit a request to the trial court and prosecutor of the county where the arrest occurred and to the DOJ’s DNA Laboratory; the court must then wait 180 days before it can grant the request; the court has discretion to grant or deny the request and its order is not reviewable by appeal or by writ. (§ 299, subd. (c)(1), (2)(D).) The DNA
Act appears to allow the prosecutor to prevent expungement merely by objecting to the request. (§299, subd. (c)(2)(D).)
The Fourth Amendment and Maryland v. King
The Fourth Amendment 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., 4th Amend.) Subject only to a few specifically established and well-delineated exceptions not applicable here, warrantless searches are per se unreasonable under the Fourth Amendment (Missouri v. McNeely (2013) 569 U.S. ___ [185 L.Ed.2d 696, 133 S.Ct. 1552, 1558]; City of Ontario v. Quon (2010) 560 U.S. 746, 760 [177 L.Ed.2d 216, 130 S.Ct. 2619]); the state thus bears the burden of showing that the search at issue is reasonable and therefore constitutional. (People v. Williams (1999) 20 Cal.4th 119, 127 [83 Cal.Rptr.2d 275, 973 P.2d 52].) " 'As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” ’ (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652 [132 L.Ed.2d 564, 115 S.Ct. 2386].) [¶] 'Reasonableness... is measured in objective terms by examining the totality of the circumstances’ (Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347, 117 S.Ct. 417]), 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.’ ” ’ (Vernonia School Dist. 47J ... at pp. 652–653; see also Samson v. California (2006) 547 U.S. 843, 848 [165 L.Ed.2d 250, 126 S.Ct. 2193] (Samson).)” (People v. Robinson (2010) 47 Cal.4th 1104, 1120 [104 Cal.Rptr.3d 727, 224 P.3d 55].)
Nonconsensual extractions of substances that may be used for DNA profiling are “searches” entitled to the protection of the Fourth Amendment. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1969] [buccal swab]; Schmerber v. California (1966) 384 U.S. 757, 767-771 [16 L.Ed.2d 908, 86 S.Ct. 1826] (Schmerber) [blood]; People v. Robinson, supra, 47 Cal.4th at p. 1119 [blood]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616-617 [103 L.Ed.2d 639, 109 S.Ct. 1402] [Breathalyzer and urine sample]; Cupp v. Murphy (1973) 412 U.S. 291, 295 [36 L.Ed.2d 900, 93 S.Ct. 2000] [fingernail scrapings].) The physical intrusion involved in the buccal swab procedure used in the present case has been viewed as minimal. (King, 569 U.S. at p.___ [133 S.Ct. at p. 1969.) 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. The latter search is the true focus of our analysis.
Federal and state statutes authorizing collection of DNA samples from persons convicted of qualifying offenses have been upheld universally by federal and state courts, albeit with significant debate and disagreement among the judges who decided these cases. (E.g., Banks v. United States (10th Cir. 2007) 490 F.3d 1178; United States v. Weikert (1st Cir. 2007) 504 F.3d 1; United States v. Amerson (2nd Cir. 2007) 483 F.3d 73; United States v. Hook (7th Cir. 2006) 471 F.3d 766; Johnson v. Quander (D.C. Cir. 2006) 370 U.S. App.D.C. 167 [440 F.3d 489]; U.S. v. Conley (6th Cir. 2006) 453 F.3d 674; U.S. v. Kraklio (8th Cir. 2006) 451 F.3d 922; U.S. v. Sczubelek (3rd Cir. 2005) 402 F.3d 175; Groceman v. U.S. Dept. of Justice (5th Cir. 2004) 354 F.3d 411; United States v. Kincade (9th Cir. 2004) 379 F.3d 813 (Kincade); Wilson v. Collins (6th Cir. 2008) 517 F.3d 421 [Ohio]; Nicholas v. Goord (2nd Cir. 2005) 430 F.3d 652 [New York]; Padgett v. Donald (11th Cir. 2005) 401 F.3d 1273 [Georgia]; Green v. Berge (7th Cir. 2004) 354 F.3d 675 [Wisconsin]; Rise v. Oregon (9th Cir. 1995) 59 F.3d 1556 (Rise) [Oregon]; Jones v. Murray (4th Cir. 1992) 962 F.2d 302 [Virginia]; People v. Robinson, supra, 47 Cal.4th at p. 1121; State v. Hutchinson (2009) 2009 ME 44 [969 A.2d 923, 932]; State v. Martin (2008) 184 Vt. 23, 46 [955 A.2d 1144]; State v. Bartylla (Minn. 2008) 755 N.W.2d 8, 18; State v. O’Hagen (2007) 189 N.J. 140 [914 A.2d 267, 280-281].)
These cases emphasize, on the one hand, that 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 U.S. v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947 (Kriesel)), including 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.) On the other hand, 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, at pp. 895-896 [inmate].) 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).
In King, the United States Supreme Court moved beyond the realm of convicted offenders, rejecting a Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with “serious crimes.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1970].) King described the “legitimate government interest” served by the Maryland DNA law as “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” (Ibid.) The court viewed a suspect’s “identity” as including not only “his name or Social Security number” but also his or her criminal history, the latter being “critical” for the police to know when processing a suspect for detention because “[i]t is a common occurrence that ‘[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.’ ” (Id. at p. ___ [133 S.Ct. at p. 1971].) For this purpose, the court stated, “the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.” (Id.
at p.___[133 S.Ct. at p. 1972].) "DNA is another metric of identification used to connect the arrested with his or her public persona, as reflected in records of his or her actions that are available to the police, ” producing “a more comprehensive record of the suspect’s complete identity.” (Ibid.)
Employing this definition of “identity, ” the court saw DNA identification of arrestees as helping ensure safety in a custodial setting by allowing law enforcement officers to “know the type of person whom they are detaining” and “make critical choices about how to proceed.” (King, supra, 569 U.S. at p.___ [133 S.Ct. at p. 1972.) DNA information could help law enforcement assure an arrestee’s availability for trial by indicating arrestees who had committed more serious offenses in the past and might be more inclined to flee in order to avoid investigation that could expose the other offenses. (Id. at pp.
__ - __ [133 S.Ct. at pp. 1972-1973.) The information could also inform bail decisions, because an arrestee’s “past conduct is essential to an assessment of the danger he poses to the public.” (Id. at p.___ [133 S.Ct. at p. 1973].) Acknowledging that it may take some time to obtain the results of DNA testing, the court observed that actual release often does not occur for a considerable time after the decision to release is made, information about the arrestee’s “identity and background” could be relevant to conditions of
release or reconsideration of the decision to release, and DNA results obtained after release on bail could lead to revocation. (Id. at pp.
__ - __ [133 S.Ct. at pp. 1973-1974].) Finally, the court noted that identification of an arrestee as the perpetrator of another crime could result in freeing a different person wrongfully imprisoned for that other offense. (Id. at p.___ [133 S.Ct. at p. 1974].)
On the other side of the balance, the court held that the privacy expectations of a person taken into police custody “ ‘necessarily [are] of a diminished scope.’ ” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1978], quoting Bell v. Wolfish (1979) 441 U.S. 520, 557 [60 L.Ed.2d 447, 99 S.Ct. 1861].) "Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, ... his or her expectations of privacy and freedom from police scrutiny are reduced.” (King, at p.___ [133 S.Ct. at p. 1978].) After finding the physical intrusion imposed by buccal swab minimal (id. at p. _____ [133 S.Ct. at p. 1979), the court offered three reasons for concluding that the processing of the DNA sample did not intrude upon privacy rights in an unconstitutional manner: Only noncoding portions of the arrestee’s DNA, which would not reveal genetic traits, were analyzed; even if additional information could be gleaned from the DNA tested, the DNA was not in fact tested for such purposes; and testing for any purpose other than identification was prohibited. (Id. at pp. ___- ___ 133 S.Ct. at pp. 1979-1980.)
In sum, the court held, “In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (King, supra. 569 U.S. at p.___ [133 S.Ct. at p. 1980].)
In a piercing dissent, Justice Scalia explained for himself and the three other dissenting Justices that the King majority’s interpretation of the Fourth Amendment departed markedly from prior Fourth Amendment jurisprudence by allowing the search of a person for evidence of a crime for which he or ...