DNA Collection Law Will Go Before Full 9th Circuit
The 9th Circuit agreed Thursday to grant an en banc rehearing over a California law that lets police collect DNA from any adult who is arrested for a felony.
In February, a divided three-judge panel found no constitutional problem with the law.
“We agree that the California DNA Act would be unconstitutional if it allowed police officers to collect DNA samples from random citizens on the street without any probable cause to believe that they committed a crime,” Judge Milan Smith Jr. wrote for the majority. “In reality, however, the police cannot collect DNA without first determining that there is probable cause that the individual committed a felony.”
That decision can no longer be cited as precedent now that the court has granted rehearing.
The latest two-page order notes that Judges Jacqueline Hong-Ngoc Nguyen, Paul Watford and Andrew Hurwitz did not participate in the deliberations or vote as to the rehearing.
A class of sampling subjects sued the state in 2009, claiming the collection of DNA samples constituted an illegal seizure of their genetic information and violated their due process rights. Lead plaintiff Elizabeth Haskell was arrested in March 2009 at a peace rally. She claims police told her she would be charged with a separate misdemeanor when she refused to let authorities swab the inside of her cheek, the typical method officers use to collect DNA.
Representing Haskell, the American Civil Liberties Union claimed the swab method constituted an unconstitutional search.