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At the 9th Circuit: Court to decide whether cataloging DNA samples of certain arrestees is constitutional

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An illustration of the DNA double helix

California's database of DNA samples has grown to nearly 2 million since Proposition 69 went into effect in 2009. That law expanded DNA collection, including directing law enforcement to take cheek swabs from individuals arrested on suspicion of crimes like murder, attempted murder, and rape. 

The idea was to make California's database comprehensive and up the likelihood of solving cases involving DNA evidence, cold cases in particular. Since its implementation, the California Attorney General's office says the monthly rate of hits signaling a match between evidence and DNA profiles has doubled.

But critics wonder why it's necessary to take DNA samples from people who have merely been arrested for — rather than convicted of — crimes. And the ACLU of Nothern California will argue at the 9th Circuit on Wednesday that arrestees should not have to give DNA samples to law enforcement.

Appearing on AirTalk Monday, ACLU attorney Michael Risher said, "there is absolutely no reason to think that taking DNA from mere arrestees to put in this database solves an appreciable number of crimes that would not also have been solved if they simply waited and took DNA from people who were atually convicted."

If investigators need samples from people who have not yet been convicted, Risher argues, they should get a warrant.

The legal issue is whether the requirement that arrestees submit to cheek swabs violates the Fourth Amendment's ban on unreasonable search and seizure. Since the DNA samples are unrelated to the crime for which the person has been arrested, the ACLU argues that the government shouldn't be allowed to amass a collection of DNA profiles without probable cause or suspicion of a crime. 

Naturally the state, representing the interests of law enforcement, disagrees.

Prosecutors, explained L.A. Deputy District Attorney Tracy Lopez at a recent conference, do not see this as a constitutional issue.

"For many years now, arrestees have had other information taken from them, such as their fingerprints," she said. "And that doesn't violate the constitution. The prosecution's argument is DNA is the ultimate fingerprint."

But, argues the Electronic Frontier Foundation in an amicus brief, DNA can also contain other information, like family ties, a person's suceptibility to certain illnesses, and a whole host of personal information beyond the strict identification utility of fingerprints.

A three-judge panel at the 9th Circuit previously upheld Proposition 69, but on appeal, the full court agreed to hear the case. There are similar cases underway elsewhere in the U.S., as well as an indication from the U.S. Supreme Court that they may review a Maryland case on the same topic. 

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