Collection of DNA from felony arrestees does not violate the Fourth Amendment

People v. Roberts (Cal. Ct. App., Aug. 20, 2021, No. C081843) 2021 WL 3700319, at *1

Summary: Roberts’ DNA had been collected after an unrelated felony arrest  for which he was not charged. Based primarily on the DNA evidence, a jury found him guilty of murder in the first degree and he was sentenced to an aggregate term of 26 years to life.

Issue: Whether using a DNA sample taken from a defendant who is validly arrested for a felony on probable cause but never formally charged, violates the defendant’s federal or state constitutional rights against unreasonable search and seizure or his state constitutional right to privacy.

The court  concluded that defendant’s federal right against unreasonable search and seizure was not violated. Use of the DNA a sample is no different than taking fingerprints and photographs of someone arrested on probable cause. And like fingerprints and photographs, once validly obtained, their  later use  in the investigation of another crime is not constitutionally prohibited. The court also held that defendant’s state constitutional rights were not violated, but even if they were, the Truth-in-Evidence provision of Proposition 8 prohibits suppression of the DNA evidence in a criminal trial.

Collection and Analysis  DNA from Subsequent Felony Arrest

Prior to trial, Roberts moved under section 1538.5 to suppress the DNA evidence asserting that California’s practice of collecting and analyzing DNA from felony arrestees, including those who are ultimately not formally charged or convicted, violates the arrestees’ search and seizure rights under the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution, and the arrestees’ privacy rights und article I, section 1 of the California Constitution.

Roberts attempted to distinguish the Maryland DNA collection law approved by the United States Supreme Court in Maryland v. King (2013) 569 U.S. 435, 133 S.Ct. 1958, 186 L.Ed.2d 1 (King) from California’s law. Because all felony arrestees must have DNA samples taken and analyzed, he claimed that the California statutory scheme grants law enforcement essentially unfettered discretion to take DNA samples.

Defendant attempted to distinguish the Maryland DNA collection law approved by the United States Supreme Court in Maryland v. King (2013) 569 U.S. 435, 133 S.Ct. 1958, 186 L.Ed.2d 1 (King) from California’s law. He pointed out that the Maryland statute authorizes collection and processing of DNA from a narrower class of arrestees, requires a judicial determination of probable cause before the sample is analyzed and placed in the DNA database, and provides for automatic expungement of DNA samples when the charges are judicially determined to be unsupported by probable cause or do not result in a conviction. California’s scheme does not have any of those requirements. Because of the differences between the California and Maryland statutes, defendant asserted California’s statutory scheme should not be upheld based on King. Defendant asserted that, because all felony arrestees must have DNA samples taken and analyzed, regardless of whether they are ever formally charged or convicted, the California statutory scheme grants law enforcement essentially unfettered discretion to take DNA samples.

In King, the United States Supreme Court expressly held: “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.” The Supreme Court recognized that “although those statutes vary in their particulars, … their similarity means that [King’s case] implicates more than the specific Maryland law.” (Ibid.)

 California’s DNA Collection Statutory Scheme

In  2004, California voters passed Proposition 69, known as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act)) to expand [then] existing requirements for the collection of DNA identification information for law enforcement purposes. The DNA Act requires law enforcement officials to collect DNA samples, as well as fingerprints, from all persons who are arrested for, as well as those who have been convicted of, felony offenses.

Proposition 69 stated that the  state has a compelling interest in the accurate identification of criminal offenders.

Fourth Amendment Analysis 

King held that: “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 pp. 465-466, 133 S.Ct. 1958.) Based on the reasoning in King underlying this holding the court  concluded this holding applies here, even though formal charges were not ultimately filed against defendant.

Governmental interests identified in King and discussed in Buza apply here. The high court was clear that each of the interests “attaches as soon as the suspect is ‘formally processed into police custody” after having been arrested based on probable cause. (Buza, supra, 4 Cal.5th at p. 449, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Taking the swab at that point constitutes “a reasonable search that can be considered part of a routine booking procedure.” (King, supra, 569 U.S. at p. 465, 133 S.Ct. 1958.) Thus, the counterbalancing government interests attach the moment a person is arrested based on probable cause and undergoes the booking process.

Truth-in-Evidence provision of Proposition 8

Even if we were to conclude defendant’s state search and seizure or privacy rights were violated, exclusion is not an available remedy because the Truth-in-Evidence provision of Proposition 8 eliminated the remedy of exclusion of evidence for violations of the California Constitution, “except to the extent that exclusion remains federally compelled.” (Lance W., supra, 37 Cal.3d at pp. 886-887, 210 Cal.Rptr. 631, 694 P.2d 744.) “[I]n California criminal proceedings, issues related to the suppression of evidence seized by police are, in effect, governed by federal constitutional standards.” (Buza, supra, 4 Cal.5th at p. 685, 230 Cal.Rptr.3d 681, 413 P.3d 1132,;  accord, Redd, supra, 48 Cal.4th 691, 720, fn. 11, 108 Cal.Rptr.3d 192, 229 P.3d 101; Robinson, supra, 47 Cal.4th at p. 1119, 104 Cal.Rptr.3d 727, 224 P.3d 55; Banks, supra, 6 Cal.4th at p. 934, 25 Cal.Rptr.2d 524, 863 P.2d 769; Elwood, supra, 199 Cal.App.3d at pp. 1371-1372, 245 Cal.Rptr. 585.)

The court noted, as did our high court in Buza, that “ ‘it is our solemn duty to jealously guard’ the initiative power secured by the California Constitution, and that we accordingly may not strike down voter measures ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ” (Buza, supra, 4 Cal.5th at p. 694, 230 Cal.Rptr.3d 681, 413 P.3d 1132, quoting Legislature v. Eu (1991) 54 Cal.3d 492, 501, 286 Cal.Rptr. 283, 816 P.2d 1309.)

The  DNA Act, as applied to Roberts did not violate his search and seizure rights under the Fourth Amendment or under article I or section 13, of the California Constitution.26 Nor did the DNA Act as applied to defendant violate his right to privacy under article I, section 1 of the California Constitution. Even if his state constitutional rights were violated, the Truth-in-Evidence provision of Proposition 8 bars exclusion of the DNA evidence.