Collection of DNA from arrestees challenged in California

SAN FRANCISCO -- An Alabama man was charged this month with the 1980 murder of an Oxnard teen. A Placerville man was arrested last month for a 1986 rape and murder of a San Mateo teen. A San Francisco man is currently on trial for the murder and robbery of a tourist two decades ago.

Technological advances in genetic research and computers in recent years have turned solving "cold cases" into near-routine police work. The California attorney general reports that the state's DNA database of close to 2 million samples spits outs more than 425 "hits" a month, more than double the average monthly rate of 183 in 2008. More than 10,000 suspects have been identified in the last five years.

But on Wednesday, the American Civil Liberties Union will argue before a federal appellate court in San Francisco that California's DNA collection efforts have become unconstitutionally aggressive and that the spike in hits comes at the expense of civil liberties.

The ACLU is asking the 9th U.S. Circuit Court of Appeals to strike down California's Proposition 69, which authorized police to obtain a genetic sample from every person arrested on felony charges, not just those convicted. Some 25 other states have enacted similar laws since 62 percent of the California electorate passed the measure in 2004.

The issue of the warrantless swabbing of the cheek with a Q-tip of everyone arrested for a felony has sparked one of the hottest "search and seizure" debates in state and federal courts in decades.

The U.S. Supreme Court has already signaled its willingness to review Maryland's DNA collection law after a federal appeals court there ruled it unconstitutional in April. The California Supreme Court has agreed to review a lower court's overturning of the California law. Several other state and federal courts have already ruled or are weighing the issue throughout the country.

11,000 a month

While the courts are sorting out the issue, California law enforcement officials are collecting more than 11,000 samples a month.

"Cold hit DNA is integral to bringing criminals to justice," said San Francisco District Attorney George Gascon, whose office is prosecuting William Payne for the 1983 strangulation murder of Nikolaus Crumbley. Crumbley's body was found in the city's McLaren Park along with DNA that was finally matched to Payne earlier this year. Payne denies killing Crumbley, saying his DNA was found at the scene because the two had had consensual sex. The match was made after Payne submitted a DNA sample after an unrelated assault conviction.

"Almost three decades later, we have charged the person responsible for this horrific murder," Gascon said.

The 9th Circuit itself has previously upheld the California law, which went into full effect in 2009. But underscoring the importance of the debate, a majority of the court's 24 judges voted to reconsider that divided ruling of three-judge panel. The matter now goes before a special "en banc" court of 11 judges.

Judge Milan Smith Jr., in writing the majority opinion of the three-judge panel, likened the expanded DNA collection efforts to nothing more than the 21st century's answer to fingerprints.

Since 1998, California has collected DNA from convicted felons to help solve crimes. In addition to solving cold cases, the technology has also led to the exoneration of at least 200 wrongly convicted nationwide.

But California's proposition expanded DNA collection to those arrested for felonies -- an important distinction to the ACLU and privacy advocates. They argue the cheek swab of the arrestee comes too early in the criminal justice process, because not every felony arrest leads to a felony conviction, and every American is innocent until proven guilty.

The critics aren't challenging the state's right to collect samples from those convicted of felonies.

"Testing those who are actually convicted serves the state's legitimate interests in obtaining samples from proven criminals while avoiding the threats to privacy created by testing everyone arrested, including those who are innocent," the ACLU's Michael Risher argued to the court.

The ACLU is representing three Californians who say they are among the 50,000 people arrested for felonies every year in California but never convicted of a felony. They say their privacy was invaded by the cheek swabbing during their arrest and incarceration, usually during booking.

Lily Haskell, one of the plaintiffs, gave a cheek swab after she was arrested at an anti-war rally in San Francisco three years ago and charged with a felony. The felony charges related to the protest were quickly dropped.

"Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out," Haskell said.