PEOPLE v. BUZAAppellant’s Supplemental BriefCal.December 26, 2017 T 475 Fourteenth Street, Suite 650 * Oakland, California 94612 * (415) 495-3119,* Facsimile: (415) 495-0166 December 21, 2017 SUPREME COURT FILED Jorge Navarrete Clerk/Administrator DEC 26 2017 California Supreme Court 350 McAllister St. Jorge Navarrete Clerk San Francisco, CA 94102 . Deputy People v. Mark Buza, 8223698 — Oral Argument Set for January 3, 2017 Pre-Argument Letter Brief re New Authorities (Rule 8.520(d)) Dear Mr. Navarrete: The Court has calendared oral argument for January 3, 2017. Counsel for appellant Mark Buzarespectfully submits this short letter briefto apprise the Court ofnew post- briefing authorities, pursuant to Cal. Rules of Court, rule 8.520(d). Amendments of DNAstatutes contingent on disposition of Peoplev. Buza. ° Stats. 2015, c. 487 (A.B. 1492), eff. Jan. 1, 2016. At the time of Appellant’s Answer Brief on the Merits (AABM), the Legislature was considering A.B. 1492, which would make certain amendments ofCalifornia’s DNA search statutes, contingent upon this Court’s ultimate disposition ofPeople v. Buza. (AABM 89- 91.) That is, the amendments will take effect only ifthis Court (like the Court ofAppeal) finds the existing statutory regimen unconstitutional. The Legislature ultimately enacted A.B. 1492. But, due to intervening amendments,thatfinal legislation makes fewer changes to the California statutes than previously reported. In contrast to the earlier version ofthe bill summarized in the AnswerBrief, the enactedlegislation does not limit the kinds offelony arrests which will trigger mandatoryDNA searches. As enacted, AB. 1492 does not amend Penal Code section 296. That statute continues to require a DNA search immediately upon arrest for “any felony offense.” (§ 296(a)(2)(C).) . The final legislation does enact contingent amendments of section 298 and 299. Those amendments: (1) would defer forwarding ofaDNA sampleto the state DepartmentofJustice until there has been finding ofprobable cause,in the form ofan arrest warrant, a grandee |VED indictment, or a judicial finding of probable cause (§ 298(a)(1)(A), as amended by A.B. DES 282017 CLERK SUPREME COURT Jorge Navarrete Clerk/Administrator December21, 2017 Page 2 1492, § 3); and (2) would provide for automatic expungement of the DNA profile and destruction of the sample from an arrest not resulting in a felony conviction (§ 299, as amended by A.B. 1492, § 5). As noted earlier, these contingent amendments will take effect only if this Court “rules to uphold” the Court of Appeal’s 2014 decision in Buza IT. (§§ 298(d), 299(g), as amended by A.B. 1492, §§ 3,5.) Asstated in Buza’s AnswerBrief, this Court should decide the case solely on the basisofthe statutes extant at the time ofBuza’s conviction for refusal to consent to a DNAsearchat the time ofhis arrest (prior to any judicial determination ofprobable cause). The Court should not issue an advisory opinion regarding the validity ofthe contingent amendmentsincluded in A.B. 1492. (AABM 90-91.) Materiality of state privacy clause to construction of state search clause. . Pena-Rodriguez v. Colorado (2017) ___ U.S. ___, 137 S.Ct. 855. In Pena-Rodriguez, the U.S. Supreme Court held that the SixthAmendment guarantee ofa fair jury trial required consideration ofjuror affidavits showingthe deliberations were tainted by statements of racial bias, notwithstanding a state rule prohibiting impeachmentof a verdict with evidence of the content of the deliberations. In so holding, the Court construed the Sixth Amendmentin view of the later-enacted Civil War Amendments, a “central purpose” of which was the “elimination of racial discrimination” in state proceedings. (Jd. at 867.) ‘The unmistakeable purpose underlying these precedents is that discrimination on thebasis ofrace, ‘odiousin all aspects, is especially pernicious in the administration ofjustice.’ [Citation.]” (/d. at 868.) The Supreme Court held that the later Civil War Amendments mustalso inform construction and application of the Sixth Amendmentrightto a fair jury trial. “This imperative to purge racial prejudice from the administration ofjustice was given new force and direction by theratification of the Civil War Amendments.” (ld.at 867.) Similar principles should guide this Court’s construction of the California Constitution. As Buza has argued, the later-enacted constitutional Privacy Initiative (art. I, § 1), with its core focus on informational privacy, should also inform the construction and application of the state charter’s longstanding prohibition on “unreasonable seizures and searches”(art. I, § 13). (See AABM) 30-34.) Jorge Navarrete Clerk/Administrator December 21, 2017 Page 3 Just as the later-enacted Civil War Amendments’ focus on redressofracial injustice must also guide application ofthe Sixth Amendmentfairtrial guarantee, the sameis true ofthe interplay betweenthe state privacy and unreasonable search clauses. As the Court ofAppeal observed,theprivacy clause’s protection ofinformational privacy is especially material to recognition of the scope of “what California society would consider a legitimate expectation of privacy. The values reflected in the state constitutional right to privacy necessarily inform and illuminate the scope ofthis aspect of a claim underarticle I, section 13 — the reasonable expectation of privacy of a California arrestee.” (Slip opn., p. 54 (emphasisin original).) The severity of the privacy intrusion represented by indefinite retention of a DNA sample providing potential access to “a wealth of additional, highly personal information.” . Birchfield v. North Dakota (2016) __U.S.__, 136 S.Ct. 2160. In Birchfield and its companion cases, the Supreme Court addressed the constitutionality ofcriminal penalties for DUI suspects’ refusals oftwo distinct kinds ofwarrantless tests to measure blood alcohollevel. The Supreme Court drew a sharp distinction between refusal of a warrantless breath test and refusal of a warrantless blood test, due to the much greater invasion of privacy interests represented by the latter test. Not only is a blood test more physically intrusive than a breath test. It also has far greater privacy implications, because the retention ofa blood sample posesthe potential for future law enforcementaccess to highly personal information beyondthe suspect’s alcohollevel. The physical intrusion of a breath test is “almost negligible” and the privacy implications “slight.” (Birchfield, 136 S.Ct. at 2176, 2184.) A breath test does not extract anything from a person’s body but simply measures the alcohollevelofthe air the suspect exhales. The only information revealed by a breath test is alcohollevel, and the procedure does not involve retention of any sample that could potentially provide access to any other kind of information about the suspect. In so holding, the Court explicitly contrasted the de minimis intrusion ofa breathtest with thefar moreprofoundprivacy infringementofa warrantless DNAtest, like those considered in Marylandv. King. Because “breath tests are capable ofrevealing only one bit of information, the amount of alcoholin the subject’s breath,” “they contrast Jorge Navarrete. Clerk/Administrator December 21, 2017 Page 4 sharply with the sample of cells collected by the swab in Maryland v. King.” Although the Maryland law stated that the DNA “could lawfully be used only for identification purposes [citation],” the Court recognized that this benign stated purpose was not enoughto resolvethe potential future privacy invasion posed by the state’s indefinite retention of a DNA sample: “/T/heprocessput into thepossession oflaw enforcement authorities a samplefrom which a wealth ofadditional, highly personalinformation could be obtained. A breathtest, by contrast, results ina BAC reading on a machine, nothing more. No sample ofanything is left in the possession ofthe police.” (Birchfield at 2177 (emphasis added).) “Blood tests are different.” (Ud. at 2178.) Rather than test the air a suspect has already exhaled, a blood test involves taking a sample of biological material from a person’s body. Most importantly, the state’s retention of the sample presents a potential danger of later extraction of additional private information, beyond the legitimate object of alcohol level. “[A] bloodtest, unlike a breath test, places in the handsoflaw enforcementauthorities a sample that can bepreserved andfrom which it is possible to extract information beyond a simple BAC reading. Even ifthe law enforcement agencyis precluded from testing the blood for any purposeother than to measure BAC,thepotential remains and may result in anxietyfor thepersontested.” (Id at 2178 (emphasis added).) In view ofthese distinctionsin the degree ofpotential privacy infringement posedby the two kinds ofprocedures, the Court concludedthat a state could legitimately impose criminal penalties for a suspect’s refusal of a warrantless breath test but not for refusal of a warrantless blood test. Because “Birchfield was threatened with an unlawful search” and was“prosecutedfor refusing a warrantless blood draw,” the Court overturned his conviction forthat refusal. (/d. at 2186.) Like Birchfield, Buza is not challenging the admission ofthe fruits ofa search buthis separate criminal conviction (under Pen. Code § 298.1(a)) for his refusal of warrantless search. Like a blood draw, a DNAsearch involvesthe physical collection ofcells from a person’s body — rather than simply the measurement ofsomethingthat has already left the body. Most importantly — as the Supreme Court explicitly recognized — blood draws and DNAtests each involve long-term retention of biological samples from which the state could potentially extract “a wealth of additional, highly personal information” — notwithstanding the existing law’s nominal preclusion of the samples’ use for any other purpose. (Birchfield at 2176.) Jorge Navarrete Clerk/Administrator December 21, 2017 Page 5 The Supreme Court reversed Birchfield’s conviction becausethere was“no indication in the record... that a breath test would have failed to satisfy the State’s interests in acquiring evidence” of his BAC. (/d. at 2186.) Similarly, there has never been any suggestion here why ordinary fingerprinting would not have been sufficient for the authorities to identify Buza. (The state has never suggested this was one ofthose rare cases wherefingerprinting would have been ineffective due to some physical anomaly or other circumstance.) As Buzahasarguedall along, the state’s representation thatit is interested only in the putative “noncoding” DNAis inadequate to resolve the concerns posedbythestate’s indefinite retention of the sample itself. As the Court of Appeal here held, “the far greater dangerto privacylies in the DNA samples from which the CODISprofiles are developed, which... contain the entire genome.” (Slip opn., pp. 24-25 (emphasis in original).) Two other distinctions make this an even more compelling case for reversal than Birchfield. First, as discussed thoroughly in Buza’s AnswerBrief, the several salient distinctions between California’s DNAregimenand the Marylandlaw at issue in King skew the balance betweenlegitimate law enforcement identification interests and an arrestee’s privacy interests. California’s failure to provide for automatic expungement of samples from arrests that do not result in convictions andits very cumbersome procedures for an exonerated arrestee to petition for expungement exacerbate the continuing privacy infringement posedbythestate’s retention ofDNA samples. Consequently, Birchfield’ s explicit recognition ofthe privacy risk posed by the state’s retention of biological samples supports Buza’s argument that his conviction for refusal to submit to a warrantless DNA search violates the Fourth Amendment. The necessity forreversalis still greater under the California Constitution, because it provides far greater constitutional protection for the “informational privacy” threatened by the state’s indefinite retention ofa DNA sample providing potential access to “a wealth ofadditionalprivate information.” Article I, section 1's explicit elevation of“privacy”as an “inalienable”right must also inform applicationofarticle I, section 13's proscription on unreasonable searches. (AABM 30-34;slip opn., p. 54) Because the California Constitution places much greater weight on privacy, especially “informational privacy,” than the Fourth Amendment, this Court must strike a different, more privacy-protective balance in assessing Buza’s conviction for Jorge Navarrete Clerk/Administrator December 21, 2017 Page 6 refusal of a warrantless DNA search underthe California Constitution. Recognition under international law of the privacy implications of retention of DNA samples and other biometric data. Puttaswamy v. Union ofIndia (Supreme Ct. of India, Aug. 24, 2017) Writ Petition No. 494 of 2012.' In construing the California Constitution, this Court may look to the treatment of similar rights under international law, including the high courts of other democratic nations. (See, e.g., Jn re Marriage Cases (2008) 43 Cal.4th 757, 853 fn. 70 (noting judicial decisions in South Africa and Canada authorizing same-sex marriage).) In Puttaswamy, the Supreme Court of India has held that privacy represents a constitutionally protected fundamental right underthe Indian Constitution. The case arose on challenge to a governmental program for “compilation ofbiometric data” from citizens. (Puttaswamy,lead opn., p. 5 93.) Because the object ofthe reference to the Supreme Court was resolutionofthe constitutional status ofprivacy, the Court did not resolve the particulars ofthe challenge to that program but instead addressed the general parameters of the privacy right. Like this Court in its construction of California’s privacy clause, the Indian Supreme Court placed particular emphasis on “informational privacy” as a core componentofthe constitutional right. (Lead opn., pp. 246-260 4] 170-185, pp., 264-265 Concl. { 5.) In construingthe privacy right underits own Constitution, the Indian Supreme Court drew upon judicial decisions on privacy in the United States and numerous other countries, as well as prior Indian precedents. Ofparticularnote, the Indian Supreme Court looked to a prior decision of the European Court of Human Rights (ECHR) with direct relevance to California’s DNA regimen — S. and Marper v. United Kingdom (2008) ECHR 1581.” (Puttaswamy,lead opn., pp. 183-186.) In S. and Marper, the Grand Chamber of the ECHRheld that the government’s indefinite retention ofarrestees’ DNA samplesafter the termination ofcriminalproceedings (by ' http://supremecourtofindia.nic.in/supremecourt/20 12/35071/35071_2012_ Judgement_24-Aug-2017.pdf {reviewed as of Dec. 18, 2017}. 2 https://hudoc.echr.coe.int/eng#{"itemid":["001-90051"]} {English translation ofS. and Marper; reviewed asof Dec. 18, 2017}. Jorge Navarrete Clerk/Administrator December21, 2017 Page 7 acquittal or dismissal) violated the protection of “private life” under the European Convention ofHuman Rights and Fundamental Freedoms.’ Like the appellate court in Buza, the ECHR recognizedthat “the retention ofcellular samples and DNAprofiles” poses more grave privacy consequences than fingerprint databases“in view ofthe stronger potential for future use ofthe personal information contained” in DNA. (S. and Marper, English trans., p. 21 § 69.) The ECHR too noted that the authorities’ current limited use ofthe DNA datadid not cure the danger posed by the potential future use of the samples for other purposes. “Given the nature and the amount of personal information contained in cellular samples, their retentionper se must be regarded as interfering with the respectfor the private lives of the individuals concerned. That only a limited part of this informationis actually extracted or used by the authorities and that no immediate detriment is caused in a particular case does not changethis conclusion..” (d., p. 22, 73.) The ECHR too was concerned with the prospect ofthe potential use ofDNA “for familial searching with a view to identifying a possible genetic relationship between individuals.” (/d., p. 23 75.) The European Court ofHuman Rights concludedthat the retention of the samples and profiles “ofpersons suspected but not convicted ofoffences... fails to strike a fair balance between the competing public andprivate interests.” (/d., p. 35 125.) Like the U.S. Supreme Court’s recent observations in Birchfield v. North Dakota,the ECHR’s decision in S. and Marperattests to the greater privacy risk posed by California’s indefinite retention of DNA samples and its failure to provide for automatic expungementofthe samples ofarrestees who are not ultimately convicted. . Thoughthestate insists it has no intent to use those samples for any purpose other than identification, those assurances are not enough to eliminate the potential for future extraction of more sensitive personal information from that genetic data. 3 Counsel first became aware of the ECHR’sprior decision in S. and Marperin the course ofreviewing the 2017 decision ofthe Indian Supreme Court in Puttaswamy. Because the ECHR’s analysis ofDNA retention under the European Convention’s privacy clauseis plainly relevant to this Court’s application ofthe California’s Constitution similar guarantee, weregretnot citing it in the Answer Brief. To ensure that this Court has the benefit ofall relevant authorities, domestic and international, we respectfully request the Court to consider S. and Marper, despite its late citation. Jorge Navarrete Clerk/Administrator December 21, 2017 Page 8 Updatedcitation for Joh law review article on DNA expungement. The amicus curiae of Electronic Frontier Foundation cited a pre-publication law review article by Prof. Elizabeth Joh on the “myth” ofDNA expungement. (EFF Br. 13-16) That article has now been published: ° Joh, The Myth ofArrestee DNA Expungement (2015)164 U.Pa.L.Rev.Online 51. KK Please submitthis letter to the Court. Thank you for your consideration. Respectfully submitted, \hayMind J. Bradley O’Connell Assistant Director State Bar No. 104755 Counsel for Appellant Mark Buza Word CountCertificate Counsel for Mark Buzaherebycertifies that this brief consists of 2770 words (excluding proofof service and this certificate), according to the word count of the computer word- processing program. (California Rules of Court, rule 8.520(d)(2)).) Dated: December 21, 2017 ) , ]apy! J. Bradley O’Connell Assistant Director DECLARATION OF SERVICE BY MAIL AND ELECTRONIC SERVICE BY TRUEFILING Re: People v. Mark Buza Case No.: 8223698 Court of Appeal Case No.: A125542 I, the undersigned, declare that I am over 18 years of age and not a party to the within cause. I am employedin the County of Alameda, State of California. My business addressis 475 Fourteenth Street, Suite 650, Oakland, CA 94612. Myelectronic service addressis eservice@fdap.org. On December 21, 2017, I transmitted a PDF version of Pre-Argument Letter Brief Citing New Authorities by TrueFiling to the following: Xavier Becerra, Attorney General Office of the Attorney General (Respondent) Court of Appeal, First Appellate District Michael J. Mongan Deputy Solicitor General Michael.Mongan@doj.ca.gov On December21, 2017, I served a true copy of this document on eachofthe following, by placing samein an envelope(s) addressed as follows: San Francisco County Superior Court Attn: Hon. Carol Yaggy, Judge 850 BryantStreet San Francisco, CA 94103 San Francisco County District Attorney 850 BryantStreet San Francisco, CA 94103 Eric A. Herzog Norton Rose Fulbright US LLP 555 South FlowerStreet, Forty-First Floor Los Angeles, CA 90071 Mark Zahner Albert C. Locher California District Attorneys’ Association 921 - 11th Street, Suite 300 Sacramento, CA 95814 Richard Shikman — Attorney at Law 15 Boardman Place San Francisco, CA 94103 Mark Buza (Appellant) Christopher H. Asplen Hill Wallack LLP 777 Township Line Road Yardley, PA 19067 Ronald F. Remmel Newton Remmel A Professional Corporation 1451 Grant Road, P.O. Box 1059 Mountain View, CA 94042 Tony Rackaukas, District Attorney Camille Hill, Assistant District Attorney Orange County District Attorney P.O. Box 808 Santa Ana, CA 92702 Martin J. Mayer James Touchstone Deborah Pernice-Knefel Jones & Mayer 3777 No. Harbor Boulevard Fullerton, CA 92835 Joseph R. Grodin Distinguished Emeritus Professor ofLaw UC Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 Jennifer Lynch Lee Tien Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 Steven Katz Phyllis C. Asayama Roberta Schwartz Los Angeles County District Attorney Appellate Division 320 West Temple Street, Suite 540 Los Angeles, CA 90012-3266 Michael T. Risher American Civil Liberties Union Foundation ofNorthern California Inc. 39 Drumm Street San Francisco, CA 94111 Each said envelope was sealed and the postage thereon fully prepaid. I am familiar with this office’s practice of collection and processing correspondencefor mailing with the United States Postal Service. Under that practice each envelope would be deposited with the United States Postal Service in Oakland, California, on that same day in the ordinary course of business. I declare under penalty of perjury under the laws of the State of Californiathatthe foregoingis true and correct. Executed on December21, 2017, at Oakland, California. Spaces
