Cal.4: DNA properly seized when crime was a felony wasn’t unreasonable after Prop 47 retroactively made it a misdemeanor

By John Wesley Hall
Law Offices of John Wesley Hall
Sep 9, 2017

Prop 47 that retroactively reduced some felonies to misdemeanors does not mean that DNA reasonably collected back when it was a felony was unreasonably seized at the time and didn’t retroactively become unreasonable. People v. Harris, 2017 Cal. App. LEXIS 770 (4th Dist. Sept. 6, 2017):

The collection of Harris’s DNA sample was minimally intrusive on her privacy. In King, the United States Supreme Court, in rejecting a Fourth Amendment challenge to Maryland’s DNA Collection Act, observed that “[t]he expectations of privacy of an individual taken into police custody ‘necessarily [are] of a diminished scope.’” (King, supra, at p. ___ [133 S.Ct. at p. 1978]; accord, Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049, 1058 (Harris) [Felony arrestees have a “significantly diminished expectation of privacy.”].) “It is beyond dispute that ‘probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.’” (King, supra, at p. ___ [133 S.Ct. at p. 1970].)

The procedure of collecting DNA by buccal swab is minimally intrusive physically. “The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no ‘surgical intrusio[n] beneath the skin,’ [citation], and it poses no ‘threa[t] to the health and safety’ of arrestees. …” (King, supra, at p. ___ [133 S.Ct. at p. 1968].) “Nearly half a century ago, the Supreme Court upheld as ‘reasonable’ a hospital’s extraction of a blood sample, which was done ‘[a]t the direction of a police officer’ who was investigating a person suspected of driving under the influence.” (Harris, supra, 669 F.3d at p. 1058, citing Schmerber v. California (1966) 384 U.S. 757, 758, 771 [16 L. Ed. 2d 908, 86 S. Ct. 1826].) Collecting DNA by buccal swab “is far less invasive than the blood test approved in Schmerber. … The buccal swab cannot seriously be viewed as an unacceptable violation of a person’s bodily integrity.” (Harris, at p. 1059.) And “a swab of this nature does not increase the indignity already attendant to normal incidents of arrest.” (King, at p. 1979.)

Moreover, the state’s use of DNA samples collected under the Database Act is strictly limited by statute. …