When Is It OK to Take People's DNA Without Their Consent?

A California court took a step to limit when the government can seize a suspect's genetic material

cheekswab.jpg

If you're walking down the street and a police officer wants to swab your cheek for a DNA sample, you can refuse. But if you're convicted of a felony, you can't. At what point in the criminal process do you lose that right?

In California, until last week, the answer was the moment you were arrested for a felony. But a California state court has struck down the state statute that allowed such DNA collection, saying the measure "unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution."

The decision comes at a crucial time in the legal battle over DNA evidence: Last summer, a three-judge panel on the federal Ninth Circuit heard arguments about California's law and has yet to issue its opinion. This fall, the circuit will sit en banc -- that means all of the judges not just three of them -- to decide whether a very similar federal law is constitutional. Another circuit court has already decided that it is. If the two circuits disagree (or even if they don't), the issue could come before the Supreme Court soon.

The California state court explained in its decision that there is a "continuum of privacy," from ordinary citizens, who have a full expectation of privacy and protection from unreasonable search and seizure under the Fourth Amendment, to incarcerated prisoners, who have "a very limited expectation of privacy." Someone who has been arrested for a felony crime but has not yet been "the subject of a judicial determination of probable cause" is more similar to an ordinary citizen than a prisoner. The court went on to point out that, in California, only about half of felony arrests result in convictions.

It's unclear whether the state court decision will have any effect on the two cases before the federal court. That court is in no way bound by the state court's ruling, but Michael Risher, a staff attorney with the American Civil Liberties Union of Northern California, says that this decision was so well reasoned, and explored the legal and practical questions of DNA collection so thoroughly and thoughtfully, that the circuit court may, in the end, find it persuasive.

Image: Canadian Blood Services/Flickr.

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Rebecca J. Rosen is a senior editor at The Atlantic, where she oversees the Business Channel. She was previously an associate editor at The Wilson Quarterly.

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