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Ninth Circuit Appeals Court Upholds DNA Collection from Arrestees By Surajit Sen Sharma In an appeal stemming from the plaintiffs’ attempt to seek preliminary injunction over execution of the 2004 Amendment to California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act) being denied by the district court, the Ninth Circuit Court of Appeals, on Thursday, upheld the decision of the district court and denied relief to the plaintiffs.

02/24/12 The ruling would allow law enforcement officers to collect DNA samples from all adults arrested for felonies, regardless of post trial conviction or acquittal. The plaintiffs contended that the 2004 Amendment violated the Fourth Amendment right to be free of unreasonable searches and seizures. The Appeals Court reasoned as follows: “We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh

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arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.” The judgment also mentioned in context that the law enforcement use of California’s DNA database has proven highly effective, and that since 1998, California law enforcement officials have been able to identify more than 10, 000 offenders by relying on the DNA database. To further the ability of law officers to successfully implement modern methods and safeguard the lives of citizens, California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (2004). The amendment strengthened the law enforcement’s capacity to collect DNA from “any adult person arrested charged with any felony offense … immediately following arrest, or during the booking … process or a s 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.” The 2004 Amendment came into effect on January 1, 2009, and officers’ method for collecting DNA was by buccal swabs gently swept along an arrestee’s inner cheek. Failure to cooperate on part of the arrestee is a misdemeanor under the California Penal Code. The full text of the judgment in Haskell v. Harris can be found here. http://www.ca9.uscourts.gov/datastore/ general/2012/02/23/10-15152.pdf

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Ninth Circuit Appeals Court Upholds DNA Collection from Arrestees