PEOPLE v. BUZA

Respondent’s Reply Brief on the Merits

Cal.October 21, 2015

Jn the Supreme Court of the State of Caltfornia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. $223698 SUPREME COURT v. EILED MARK BUZA, OcT 21 2015 Defendant and Appellant. First Appellate District, Division Two, Case No. A125542 Frank A. Vicbulre Clerk Deputy San Francisco County Superior Court, Case No. 207818 The Honorable Carol Yaggy, Judge REPLY BRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Senior Assistant Attorney General STEVEN T. OETTING Deputy Solicitor General MICHAEL J. MONGAN Deputy Solicitor General State Bar No. 250374 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-2548 Fax: (415) 703-2552 Email: Michael.Mongan@doj.ca.gov Attorneysfor Respondent RECEIVED OCT 16 2018 CLERK SUPREME COURT TABLE OF CONTENTS Page Introduction ......ccccesceessessessessesseesseeeseesceeeeeteneneeneieneneeeeeeeseeteteneseseneneaseeneeees 1 ALQUMENEeeeeceeeececeeceeeneceesscessessesoescessessssesecsecsecrscsesesssesscssscestssvaseraeenss 2 I. The DNAActis constitutional under Marylandv. King....... 2 Il. This court should follow King when interpretingarticle I, section 13 of the California Constitution........0..cccccceee 6 A. Thestarting point for this court’s analysis should be to consider Maryland v. King v.cceeccccccccssee 7 B. The court’s precedents counsel deferring to KING eeececcesccceenseeesessesscsesseeseceseesasecsecccssscessssensssnaveranes 11 1, There is no material textual difference between section 13 and the Fourth AMOCNAMEN..0...cceeccceessceecssseeseeesessessteccaseens 12 2. The King dissent and academic commentary do not warrant departing FO King ..ecececesscsesecssessessessccsseescecsesscseessenees 16 3, Past cases applying section 13 to arrestees do notjustify departing from KING eeeeeceecccecenecsceseeeeeseeeseeseecseeeeseeeesessseseessees 18 4. This court’s decisions concerning Proposition 8 and Proposition 115 provide no support for departing from KUNGee eeccceecceeeeenceesteseeeesnseessscessneeescssesssssceaies 20 C, The decision of the Vermont Supreme Court in State v. Medina provides no basis for departing FrOM Kgee eececceesceessssseeescseeseccscseccseensecesecsueseasvaverss 21 WI. The DNA Actis independently reasonable under SOCtION 13 Loic eeacssseeccccscsacsscceessccusscaaesssssecsceeeeseseserercs 23 A. Buzaignores the long history of collecting identifying characteristics from arresteesat DOOKING oe. eeecesseecseceesesscseesscsucseccseeseevsevssssteseaaees 24 TABLE OF CONTENTS (continued) Page B. California has a compelling interest in collecting DNA identification information from ATTOSTCES..... ce eeeeeeeeecccesneeeensesseeceesaeeeresensaseteasesnstnesseeees 26 1. DNAidentification profiles are powerful identifiers that serve important public INCETOSES .... eee eeeceeeceeecesereeeeecsnetersneeaseateeeaees 26 2. California uses arrestees’ DNA information only as an identifying Characteristic .......cccceeeececcceccceseecccescsccassececeanees 28 3, Collecting DNA information from all felony arrestees at the time of booking advances significant state interests ................ 33 a. Collection from all adult felony AITESTCES oo eeccceeeeseeeeneeeteeeeseeesaeeeeeees 34 b. Collection and analysis at booking..... 37 C. The DNA Act minimizes any intrusion on legitimate privacy Interests ....... cee ceeeeeeeeeeeeseneeeatees 4] 1. Arrestees have diminished expectations of privacy and noprivacyinterestin their LGONtity occ eeeeeeeeeseeeseecesseeeeeeeeaaeeetsneeeseetnereees 4] 2. The DNA Act, and the State’s implementation of that Act, protect the privacy interests of arrestees......eee 43 3. Asrestees whoare not convicted may have their DNA samples destroyed and identification profiles expunged..............6: 50 IV. The DNAActis consistent with the privacy protection in article I, section 1 of the California Constitution............ 54 CONCIUSION......ccccecsscccecseesccsceseeccsecesecnseeeseaeecsaeessenscessteesateeessanerscecseeaeeeseeees 56 i TABLE OF AUTHORITIES Page CASES Alfaro v. Terhune (2002) 98 Cal.App.4th 492 ooo.ec eesesccetessesseceesaceeesseectatevsetteesarereas 48 Argersinger v. Hamlin (1972) 407 U.S. 25 Liccccccccteeeeneeeneeeneeersetereeeeeeeeeeressanessaeeaecaetateeneseatens 8 Boroian v. Mueller (Ist Cir. 2010) 616 F.3d 60...ceeececeeenetserseessseeesseereseecsseeaseeseaeenatenes 29 Caballero v. City ofConcord (9th Cir. 1992) 956 F.2d 204oeeteteeeeeeee seceaeetseseneaeenenteneeteeeeenens 40 California v. Ramos (1983) 463 U.S. 992 Lceeccecceneceeeenteneeeeeeeneeteeeeesaeseeeseneseeeeeneesteesaeess 9 Cardenas v. Superior Court (1961) 56 Cal.2d 273, 276 oo cecesceescessceseeetecseceseeecsaeeeseeeeaeeaeseteaeesseeeaees 9 City ofIndianapolis v. Edmond (2000) 531 U.S. 32 Leecceccccsneceneesereeereeeaeearsieeecseteeeessanesteseeneersaeeseeees 17 City ofOntario v. Quon (2010) 560 U.S. 746 ceeecccsceneecteerteeseeeereceersaeeeseeseaeesesesessesaneeaeenees 33 Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432 oi ceccceseceneerscersesecsenecseeesaeeceaeesaeessacsseseseeeseeseares 10 Com. to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 oii cccccesccsecenerecnscneseseseeeseresaceeseesnesseserenneessess 16 County ofRiverside v. McLaughlin (1991) 500 USS. 44 we.eeeaeeanenneseesneenneceeeaeentenssesseseteeseoneeesneeeenenens 37 County ofSan Diego v. Mason (2012) 209 Cal.App.4th 376 .....ceccececssesceseceneeceensneesteeeessesaceasenses 46, 55 Ferguson v. City of Charleston (2001) 532 U.S. 67 veeccceccsceseesseeseececeerceeeteesessaeescaeesaeesessseeeeatesneeseees 17 lll Florence v. Bd. ofChosen Freeholders ofCounty of Burlington (2012)eeeeeeteeeneeceeeteressesseeeeeeneesenteessessttenseennegs 34, 41 Gabrielli v. Knickerbocker (1938) 12 Cal.3d 85 .cicceccsccccsseecesneecsensseecseeseaeeesseeeesaeeesenestaeeeessessas 21 Gerstein v. Pugh (1975) 420 U.S. 103 cecccccsccceseceseeeesceesseeeeseeseeceneeceseerseeeaererseeeateeateess 43 Harris v. McRae (1980) 448 U.S. 297 voocccccccccscccsssccecsseseseesseceeeeseeecssneerseeessieesesaeenatees 16 Haskell v. Brown (N.D. Cal. 2009) 677 F.Supp.2d 1187.eccceeecceenteeteneettteeenees passim Heller v. Doe (1993) 509 U.S. 312 vcccccccssceesssecceteeceeneteneeeseeeesaceceseeesssestesseeseaeeenees 10 Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cab.4th 1 oo. ccccccccesnseecseseesecsesececeseceeseeesseeeseeeeatieeeees passim In re Johnson (1965) 62 Cal.2d 325 icciccccccccsccecsseceesseescesesssesseeeeaeeeeersseseteseestsesseeseas 8 In re Klor (1966) 64 Cal.2d 816cc cccccccccesssececssesecssceeesteeeesseeersneeseaessseeessneeeeeess 48 In re Lance W. ‘ (1985) 37 Cal.3d 873 cieccccccccccccccssssscesssssessessscssseseeseseseeeeeesVasevensevees 20, 21 In re Marriage Cases (2008) 43 Cal.4th 757 occ cccscccscscececessescesseceecseessecsaesecssessensnerseeeartaeeeaes 7 In re York (1995) 9 Cal.4th 1133 occeccececeseecnecseeeceeeeeeseneeesressreesees 13, 14, 15, 22 Jones v. Murray (4th Cir. 1992) 962 F.2d 302 vecccccccsevssssssssssssessssesseessssssesssssevessvieessseveses 4] King v. State (2012) 425 Md. 550 vec eccacceecesereeeneesecneesenecssaesesenseecnsesestssieneessterreaaeed 4 Kirby v. Illinois (1972) 406 U.S. 682 ooecccccceccccscccenecereseeceteesecerseeseeecteeensesesitnessarenseseaes 16 1v Legislature v. Eu (1991) 54 Cal.3d 492eecccceseceseesecneceseersecseeseaesenecseesseecneceseeeneseaes 23 Loder v. Municipal Court (1976) 17 Cal.3d 859, 864-865 oo. ceecseeceseceserseceeeeeeseeeseerartaeeeaes passim Marylandv. King (2013) US. [133 S.Ct. 1958)eeeeereeeeeeenetetereeeaes passim NASA vy. Nelson (2011) 562 U.S. 134 cccccccccscssssssscssesesesescscsssesesecscsesescssesescecsescssaesess 46 People v. Barrett (2012) 54 Cal4th 108] oieececsccecessecteeevseeesesessersaseeseessesseesneensessaes 10 People v. Brisendine (1975) 13 Cal.3d 528oceecceesceeeeeceeeceneeeseeeeeseeseneeesueeteeeetaees 13, 19, 20 People v. Bustamante (1981) 30 Cal.3d 88 oo cceccenceseeeeseceeseseeeeneeseeaeeseseseesieeeeesteeeeseeesas 16 People v. Cook (1985) 41 Cal.3d 373 occecccesecssceseenecersseecseeseecneecessesensseseatseesteeeesees 7 People v. Crowson (1983) 33 Cal.3d 623 oe eeeeesceseeeseereceeeesseevsresteesaeesseesenevaseas 13, 15, 41 People v. Gallego (2010) 190 Cal.App.4th 388 oo... eceeccssesereeeseceseeeeseseecneenseeseneeveeeneesees 40 People v. Hamilton (1988) 46 Cal.3d 123 occ eeccceccceeccseseeeceseseseeeenatecteeesateesseeeeateereesens 42 People v. Laiwa (1983) 34 Cal.3d 711 eeeeeecncesseeteesecseeeeseateeerersateeeeereeeseesaeens 19, 20 People v. Longwill (1975) 14 Cal.3d 943occceecseseseneceeeeeeeceeeeeeeseeeneseeessetseesatens 19, 20 People v. Maikhio (2011) 51 Cal.4th 1074oeccccseecesecsreseesseseateeaeeneeeseecaees 17, 33, 34 People v. McInnis (1972) 6 Cal.3d 821 824-826... ecccceeseesteceteretecensceneeeeetseeteeneees 25, 26 People v. Minjares (1979) 24 Cal.3d 410eccecenceesseescteneessseeeseetensecesssecaesessestssseeseesneees 8 People v. Miranda (1987) 44 Cal.3d 57 oo ecccccccccccesneccceseesecseesseeeseseeceeaeeeeeaeesaeesaeebaeeeneeeeas 42 People v. Monge (1997) 16 Cal.4th 826, 873 occcesses ene ceeceteeneesneeeseeesesseseeesteareneee 8 People v. Norman (1975) 14 Cal.3d 929eecencccesesneeseneeeeeneeesseeesaesesneestsesenaeeaeens 19, 20 People v. Ramos (1982) 30 Cal.3d 553 oececcceceseesesecetensssecseeesneesseeesseeeesesseessssetsesesesneees 9 People v. Ramos (1984) 37 Cal.3d 136 oc ecccccccccecesecneeeesetssesseeesrecseseseeeeaeeceseeseseseseeeees 9 People v. Robinson (2010) 47 Cal.4th 1104 ooecccceseeseeeeceeeeseeeecsnaeeesneeseeeeaeensees passim People v. Ruggles (1985) 39 Cal.3d 1 i iccccccccccsseeeeseecneeceeeeneeeneersterseeceseeeaeseseeesseentees 8,9 People v. Shamblin (2015) 236 Cal.App.4th |.ceccceseeseneeneeserereneeseeseneessetieeeeeeseereeas 34 People v,.. Teresinski (1982) 30 Cal.3d 822occeccseecceeeseeeeseeseterseserenseeeseaeeeeseseeaesas passim People v. Wheeler (1978) 22 Cal.3d 258 oo. ..ccccccessceesccessecsteeetaeecetcesceesecseseenaeesseesserteeeeress 9 Raven v. Deukmejian (1990) 52 Cal.3d 336 veccccsssssssessssseessssssssssssessssssessssessssssseen 6,7, 20, 21 Riley v. California (2014) US. [134 S.Ct. 2473]eeeceeeceeeeeeeteteeeeneeeees 47 Rise v. Oregon (9th Cir, 1995) 59 F.3d 1556 wee eeesseseeseeeeeesetsaeseeeseseeseeseneeseeaees 35, 36 San Antonio Independent School Dist. v. Rodriguez (1973) ALL US. 1 cece eect tere teeesnseneeecicessnsnensasseenenensensieensenteesneenenens 9 Vi Sands v. Morongo Unified School District (1991) 53 Cal.3d 863 oeecccccceeseecseeeteeneeeaeeseeesneetseereseseesseneeeenees 10, 11 Serrano v. Priest (1971) 5 Cal.3d 584ceee ree ttcneeserseceesisesseecsesneetasseeenaeensasenseees 8 Serrano v. Priest (1976) 18 Cal.3d 728 veccccsssssssscessessessssseselessesssesssssssssseseesssssesessnneeeee 8.9 Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 oooeeececesseneeeeceeeeesseseeessesesesseenesreeseeetees 13, 14 Smith v. United States (D.C. Cir. 1963) 324 F.2d 879... cecececceseeneeneeeecsaeesssesseseresnsesessesenees 25 State v. Dabney (Wisc.Ct.App. 2003) 663 N.W.2d 366...eeescscceteetseerteereenies 23 State v. Medina (Vt. 2014) 102 A.3d 661.eectsseteerseceseeceeereeeesesseeecseeeeeeetens 21, 22 Stone v. Superior Court (1982) 31 Cal.3d 503eeeceeeeseeeeerreseesecessereeserecneeesseeseneesisesieesseess 9 Taylor v. Louisiana (1975) 419 U.S. 522 cecccccssssssseesessssesesssssssssssnvessssessssssunerssniseessessessnseees: 9 United States v. Davis (M.D. Fla. 2014) 65 F.Supp.3d 1352 weeeecteeeseesseeseeeeeees 3 United States v. Hensley (1985) 469 U.S. 221 oceeeceneeeeeeeeeteneeeseteseteeseesseeesestrestecaeesieesegs 28 United States v. Jones (2012) US. [132 S.Ct. 945]eececeetree eeees 47 United States v. Kincade (9th Cir. 2004) 379 F.3d 813 ooo eeteeeseesseeetsesseseeceeseessereenerees passim United States v. Lovasco (1977) 431 U.S. 783 vicecesccerecsseeeeecneeesseeetetesscnsessseeeessessesaesarceesseeseenes 40 United States v. Mitchell (3d Cir. 2011) 652 F.3d 387 (en banc) weesceetteeteereeeeees passim vil United States v. Robinson (1973) 414 US. 218 ccc ceceeceteeceeeseneneseessesreetaeeesesaeneseetsansseeeeegs 19, 20 United States v. Ross (1982) 456 U.S. 798 voeccccceccescesecsecceeeseeseseeseeeeeeceaseaeeeeseneetetieesseseaeeeaeees 8 Whalen v. Roe (1977) 429 U.S. 589 voeccceccecccceeeecsesseneceeseecsaeeseeeeeareesenecseeeaeesseesneeeneas 40 STATUTES 42 U.S.C. § 1983 voeccccccscessesecscesensessecseeeeecnseccacecaeeseecseeeseesaeensessserssessetesseseseeeaees 40 § L4132(C) cceccccccccccssscceseesseeceeeeeseesceessesseeseaeceerecseessaseecssesseesaeenaeeesaees 45 § L4133(C) ceccccccccccccscesceecensceseceseeseecsceececeeeeeseesnesseeeseseesessessseesseseseneeaaes 45 § 14135 a(a)(L)(A) .ccccceccccccececsseccsenecseeessesneseaeesseensecscersstaetsseneesaeeaees 18 Assem. Bill No. 1492 (2015-2016 Reg. Sess.) ou .eeceeeeseesenseeeteeensaeeeees 53 Maryland Public Safety Code Annotated § 2-504, subd. (2)(3)(i). .ceeeeceesceeceseeeeeeeeseeneeeeeeatensensaeeseetetsaseseseanenes 3,5 § 2-511, subd. (a)(1) cc eececccccsccceccseescteeecereseseeeseceaesestesersaseeseaetseesaatens 5 Penal Code § 295, SUD. (A)(L)(C) cee eeeccecccesceseeecceecseeeesececsseceeseseneessseseeeaeeneetaees 37 § 295, SUD. (€) ooo ceeecceecceseeeseceteeeecceeeeeeceeeeerseteeetseeesessessesessesessaasenetaaes 44 § 295.1 ecccccccccsccscssessesessecnsesseecsesseecseecenseecnecsaeeeeecscenseseessesaeeeseaerseeeaeesaes 48 § 295.1, SUDA. (8) ceccccccceesccseecseeeceeeeeserestneesieessaeeeneseeeeeeeeeeeed 44, 46, 48 § 295.2 eccccccccccsssseeseeesceeeceeeesseeceeesseeeecieesecaneeeeesaeeeaeseneenetessenetas 44, 46, 48 § 296, subd. (a)(2)(C) .ncececcccccceccceececsteseeneceeceaeceeeeseseetsesesseseauteesenetnaes 34 § 296.1, subd. (a)(1L)(A) occ ee ceeecceeeetceneeeebeceeesseeeseeesetseeeeessseseseeteneenees 37 § 297, SUDA. (8) o.ceeeccccscecsteceteeetereceneceeseecsaeersecsseeseaecsaseasesetisesaeeseseaees 44 § 297, SUD. (D) .oceceeccceccceseetecseeneceeeeaeeececeeeeneceaeenaeeneeseceesseaseeesaeesaeeneeed 45 § 297, SUDA. (C) ose eecceeeeseeesetsecseeeseneeseneesecenereereceesseeeeetssessessessetenees 45 § 299, SUDA. (D) eee eecceeeeceestecteseceeseeeceenereeteaseeeaseeeesasseseeeesseseeuestcnaetene 50 § 299, SUDA. (C) v.eeeececeeeeceteeeseeceeceseceeetetseteeesaeeesaeseeeteaetaetseteseeaeeeneeseaeess 50 § 299.5, subd. (1)(1)(A) .ccceccccccccescccseeseeeseeteececeeeseeceeesaenscneveenesneens 45, 46 § 299.5, subd. (1)(1)(B) oo eeceececeeeceneesenseeceeeseeeesersaenaeceesseeeesnetaesaeesaeesees 45 § 299.5, subd. (1)(2)(A) ..ceecceccccseecceeeseeeeeeeceareesecsseesecnessevseneetseeaeeneenenens 45 § 299.5, SUD. (8) ...eeceececeeesseceseecesenecnseceeeersretsaeesseeesecneteetenetseeseeesenaees 44 § 299.5, SUD. (D) oo. cecceeecncecteeseeereeseteeeeseeeceereaeteeeeaeeeesaeeserseteseeetatenteed 44 § 1269b, subd. (D) occeecceeteeneeeceseteseeneeaecnseseeesaeteeeseceeneeaeeatenresaeteees 38 § 14250 oocccccccseccssecsesseeeeeeecescsecersesensescerenseseecesecnseeevseessateesteeseteneees 28 Vili Proposition 8, Prim. Elec. (June 8, 1982) oeeeereetertereeeeens 20, 21 Proposition 69, Gen. Elec. (Nov. 2, 2004) weeeee teeeceeeneeeenees passim Proposition 115, Prim. Elec. (June 5, 1990) ooeeeceeneeeneeees 20 ~ CONSTITUTIONAL PROVISIONS California Constitution ATT. TL, § Loe eeeeeceeecenececeereceseseeesssessesnsseseesneeeesensessessseeesesesseeeesens passim Tt. 1, § Liceceeeeseeeceeereeeseeseenseeseseesceseeseeeesessseessseeseseeeeseatees passim art. I, § 28, subd. (£)(2) cece eecceesseeseeseeteeeeeeeeeneeecsessesceeaeeneesesseeseeeeens 21 VermontConstitution Chi Ty art. Leccecceccscccccccccesseeeesesesenseeesseeeeeeeeieestaaeeeseseeeeessaaes 21, 22 United States Constitution Fourth Amendment .........c.cccccceecceeceeceeeseceeeeeseeneeeerneesecseesesseeneensas passim COURT RULES California Rules of Court TUle 8.500(a)(2) ..cecccccesceesscccesscecseeceececeetecseteeeseseeeeeesseessaserseeessereaseenaas 54 TUle 8.516(D)(2)....cceccccscsseccesscecsceesseeeceeaeeseeeeeseeeeseaeeeecseeseseeeneseneensetes 54 Maryland Rules of Court TUle 4-102 (a) ooececcecccceseeseeeeceeeeseeeeesesseeeevsessnntecseaesserseeraseeesesesseeteaeseeeesas 4 TUle 4-211 (D)(2) ec ecceccccccccceteeceeeesneeeeeteeeseeesesseneeenessseessectseeepeeseaeersaaeees 4 OTHER AUTHORITIES Amar & Katyal, Why the Court Was Right to Allow Cheek Swabs, N.Y. Times (June 3, 2013)eceeeceeeeseeeceseenececseesseseseeeneeeneees 18 Bower, Maryland v. King: Textualism Meets Reason (2013) 14 Engage:J. Federalist Soc’y Prac. Groups 29 oo... 18 Browne, Report of the Debates in the Convention of California on the Formation of the State Constitution in September and October, 1849 (1850)...eeeecevseseseneenaes 12, 13 Butler, Advanced Topics in Forensic DNA Typing: Methodology (2012) cc cecceeeccecceeeceeeeesetneecesneeeerseeteeseceseesneseaeees passim Butler, Forensic DNA Typing (2d ed. 2005)oeeeeeeeeees veeeeetseeesenes 35 ix CAL-DNAHits Reported January 1984 to March 2015 oo.eeeeee ce ceseeseseseeeecnesseeesteneseeeeeeeees 32 Cal. DOJ, Attorney General Kamala D. Harris Announces End to Backlog that Slowed DNA Analysis at Justice Department Labs, Jan. 25, 2012 .......seeseeseeeeeeeeeeererees 36 Cal. DOJ, BFS DNA Frequently Asked Questions .......eecescseeeessesseceteteeteereeenes passim Cal. DOJ, Buccal DNA Collection Kit Instructions occceeeseneessesesessecsersessesssesessesseesenserseensens 44 Cal. DOJ, Crime in California 2014, Table 38A occceeeeeeereeees 39, 40 Cal. DOJ, Streamlined DNA Expungement Application Form oieeeeeceetserscceeceeeestestsssessesssseeeseeneseatens 34, 35 Chin et al., Forensic DNA Evidence (The Rutter Group 2014) ooeerretreerte test eeeseseeeenneeees4. 46 Cole, Suspect Identities (2001) oo.eeeeeesceseeeeeeeeeeetsesesesceseneetseetnenesas 25 CR-185, Petition for Expungement ofDNA Profiles and Samples occeee 50 DNAPartial Match (Crime Scene DNA Profile to Offender) Policy oo.eeereece ceeeeecseeeenneenecseeeny 49 FBI, Rapid DNA or Rapid DNA Analysis ......ccc ce cece ecceseeneceeeressesenteeeneenens 27 Herkenham, Retention ofOffender DNA Samples Necessary to Ensure and Monitor Quality ofForensic DNA Efforts (2006) 34 J. of Law, Medicine & Ethics 380 occcesceteeteeteeeiees 48 Katsaniset al., Characterization ofthe Standard and Recommended CODIS Markers (Jan. 2013) 58 J. Forensic SCL. S169 iccccccccccsccssccsssccssesscsessecseececeecessecineesssesienesseeseeesserseseeesesneesaes 47 Kaye, Why So Contrived? Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King (2014) 104 J. Crim. L. & Criminology 535.00... eccceccseeereteeeneeesenneees 18 National Conference ofState Legislatures, DNA Arrestee Laws... ceccccceeceseneeeeeeseneteetsetieteesessineens 18, 34, 37 xi INTRODUCTION The collection and processing ofDNA identifying information from adult felony arrestees under the DNA Actis constitutionally reasonable. The Act allows law enforcement to obtain the most discrete and accurate identifying characteristic of the person arrested. This information serves as a modern-day complementto moretraditional identifiers such as names, photographs, fingerprints, and distinguishing marks. The routine collection of this identifying information advances important public interests, such as helping law enforcement to confirm whoarrestees are and to process them for the crime ofarrest by learning about their past criminal conduct. While the DNA samplesthat are collected and stored under the Act do contain potentially sensitive information, the Act recognizes that concern and addresses it with robust userestrictions and privacy protections. In light of those safeguards, the collection and use of DNA information under the Act imposeslittle incremental imposition on any legitimate privacy interest of individuals who are subject to custodial arrests based on probable cause to believe they have committed felony offenses. Under these circumstances, the arrestee provisions of the DNAAct are reasonable and valid under both the federal and the state Constitutions. Appellant Mark Buzaresponds by seeking to distinguish the DNA Act from the Maryland law sustained against a Fourth Amendment challenge in Maryland v. King (2013)___—sU-S. __- [133 S.Ct. 1958, 1980] (“King”), and by discounting the privacy safeguards includedin the Act. As the State’s opening brief explains, however, the distinctions he advances made no differenceto the analysis in King. And Buza does not provide any basis for concluding that the DNA Act’s privacy protections are ineffective. Buza also urges this court to depart from King in interpretingarticle J, section 13 of the state Constitution. In making that argument, however, he scarcely addresses the State’s detailed discussion ofthis court’s precedents regarding the interpretation of parallel provisions in the state and federal Constitutions. This court has said it will consider creating a divergence in the interpretation of the state and federal charters only in narrow circumstances, where there are persuasive and cogent reasons for departing from the approachofthe federal Supreme Court. The State’s opening brief demonstrates that no such circumstancesare present here, and Buzafails to refute that demonstration. Nor does Buza succeed in establishing that the constitutional inquiry should comeout differently even if this court independently balancesthe strong public interests served by the DNA Act against the incremental intrusion on the privacyinterests of felony arrestees. ARGUMENT I THE DNAACTIS CONSTITUTIONAL UNDERMARYLANDV. KING Maryland v. King held that, under the Fourth Amendment, “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.” (King, supra, 133 S.Ct. at p. 1980.) In particular, “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspectto the station to be detained in custody, taking and analyzing a cheek swab ofthe arrestee’s DNAis,like fingerprinting and photographing,a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (/bid.) As the State’s opening brief explains (RBOM 12-16), that holding was premised on the conclusion that DNA identification profiles generated from arrestee samplesare just “another metric of identification used to connect the arrestee with his or her public persona, as reflected in public records of his or her actions that are available to the police.” (King, supra, at p. 1972.) DNAidentification profiles are not fundamentally different from the fingerprints, photographs, or other identifiers that have long been collected at booking, except perhapsin their “unparalleled accuracy” and “unique effectiveness.” (Id. at pp. 1972, 1977.) Given the value ofthis identifying information for legitimate law enforcement purposesand thestatutory and scientific safeguards designed to ensurethat it is used only as an individual identifying characteristic (see id. at pp. 1970-1975, 1979-1980), the collection and analysis ofDNA information does “not amountto a significant invasion ofprivacy that would render the DNA identification impermissible under the Fourth Amendment”(id. at p. 1980). That analysis applies with equal force to California’s DNA Act. (RBOM 16.) Buza seeks to distinguish King based on three distinctions between the DNA Act and the Marylandstatute upheld in King. (E.g., ABOM 15, 94-95.) As the State has explained, however, noneof these distinctions made any difference to the Supreme Court’s analysis in King. (RBOM 17- 20.)' First, Buza points out that California collects DNA samples from arrestees at booking and begins to analyze them immediately, whereas in Maryland “there is no analysis or submission to a database until after a probable causefinding at arraignment.” (ABOM 94-95;see id. at pp. 7, 15, 16; RBOM 17-18.)? King does describe this feature of Maryland’s statute ' On each point, other states have made policy choicessimilar to California’s. (See RBOM 17-19;post, pp. 34, 37, 51.) Every court to consider a Fourth Amendment challengeto such a statute after King has rejected the attemptto distinguish the decision. (See, e.g., United States v. Davis (M.D.Fla. 2014) 65 F.Supp.3d 1352, 1367-1368.) ° To the extent Buza also suggests that Maryland prohibits the collection ofDNA samples from arrestees until after “a prosecutorial charging decision” (e.g., ABOM 39), that reading of Marylandlaw is unsupported. Although Maryland’s statute requires the collection ofDNA samples from arrestees whoare “charged with” certain enumerated crimes (Md. Pub. Saf. Code Ann., § 2-504, subd. (a)(3)(@)), in Maryland the police officer who makes a warrantless arrest must “cause a statement of charges (continued...) in setting out the facts of the case (King, supra, 133 S.Ct. at p. 1967), butits 13-page constitutional discussion never gives any significanceto the timing of collection or analysis in Maryland(see id. at pp. 1968-1980). On the contrary, the court states that “taking and analyzing a cheek swab”is “a legitimate police bookingprocedure that is reasonable underthe Fourth Amendment.” (King, supra, at p. 1980, italics added). That statement cannot be reconciled with Buza’s argumentthat the Fourth Amendment requires police to wait until well after booking to collect DNAoranalyzeit to obtain an identificationprofile. Buza notes that King “referred repeatedly to probable cause in finding that the Marylandstatute served legitimate interests for informedpretrial decisions.” (ABOM 74.) True enough,but those references support the State’s argument here. They involve a police officer’s determinationthat there is probable cause to make an arrest—not somelater determination by a magistrate at an arraignment. (See, e.g., King, supra, 133 S.Ct. at 1970 [“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 3999 take the administrative steps incidentto arrest.’”].) It is the police officer’s determination that authorizes police to detain an arrestee, “reduce[s]” the arrestee’s “expectations of privacy and freedom from policescrutiny,” and _ gives rise to “the significant governmentinterest at stake” in obtaining identifying characteristics from the arrestee. (/d. at pp. 1978, 1977.) (...continued) to be filed against the defendantin the District Court” (Maryland Rules, rule 4-211(b)(2); see also Maryland Rules, rule 4-102(a) [defining “Charging document”to include “a citation, an indictment, an information, and a statement of charges”].) In King itself, “[pJersonnel at the Wicomico County Central Booking facility used a buccal swabto collect a DNA sample from King on thedayofhis arrest.” (King v. State (2012) 425 Md. 550, 557.) Second, Buza observes that the DNA Act applies to all adult felony arrestees, while the Maryland law coversonly certain violent crimes and other enumerated offenses. (ABOM 6, 15, 16, 94, 97; see Md. Pub.Saf. Code Ann., § 2-504, subd. (a)(3)(1).) As the State’s opening brief pointed out, however, nothing in King suggests that the constitutional analysis turns on that difference. (RBOM 18-19.) King expressly acknowledges that state laws varied as to “what charges require a DNA sample”(King, supra, 133 S.Ct. at p. 1968), but focuses only on whether the crime ofarrest was one for which officers were authorized to “bring the suspect to the station to be detained in custody”(id. at p. 1980)—thussignificantly reducing the arrestee’s legitimate privacy interests as compared to an ordinarycitizen, while simultaneously triggering a “significant government interest” in “DNAidentification” of the arrestee (id. at p. 1977). Buza argues that the government interest is reduced in the case of those arrested for “non- violent” or “non-serious” felonies, asserting that such arrestees are unlikely to “have previously committed the types of violent crimes that yield DNA evidence.” (ABOM 97.) But he cites no evidence for that proposition. King, in contrast, considered it “critical” for the governmentto collect identifying information even when an individualis being “detained for [a] minoroffense[].” (King, supra, at p. 1971.) Third, Buza points to Maryland’s provisions for automatic expungement of DNArecords and destruction of samples if a criminal action “does not result in a conviction.” (Md. Pub. Saf. Code Ann., § 2- 511, subd. (a)(1); see ABOM 7, 15, 16, 95.) California likewise provides for expungement, but an affected individual mustinitiate the process. (See RBOM63-66; post, pp. 50-51.) Again, however, Maryland’s expungement policy plays no role in King’s analysis. The court mentions the policy once in its discussion of the backgroundfacts (King, supra, 133 S.Ct. at p. 1967), but does notrefer to it in the passage describing the “statutory protections” that the court viewed as constitutionally significant (id. at pp. 1979-1980). Of course, Buza’s core argumentis not really that King is distinguishable, but that it is wrong. He characterizes the Supreme Court’s analysis as “troubling” (ABOM 6), “problematic” (ABOM 65), and “fatally flawed” (ABOM39), and presses instead the views expressed in the King dissent (see ABOM 14, 18-19). Indeed, he invites this court to follow the Court of Appeal in leaving the Fourth Amendmentissue undecided, while adopting the reasoning of the King dissent as a matter of state constitutional law. (ABOM 8, 20, 94.) The court should reject that invitation. The federal claim is properly presented here, and it is important for purposesofclarity and stability for this court to makeclear that King resolves that claim, despite the distinctions between California and Maryland law. Moreover,as discussed in the State’s opening brief (RBOM 20-29) and in the next section, a recognition that Buza’s federal challenge fails under King is also the starting point for this court’s analysis of the parallel claim Buza advances underarticle I, section 13 ofthe state Constitution. Ii. THIS COURT SHOULD FOLLOW KING WHEN INTERPRETING ARTICLE I, SECTION 13 OF THE CALIFORNIA CONSTITUTION As the State recognized in its opening brief, the California Constitution is a document of independent force. (RBOM 20.) Buza emphasizes this principle (see, e.g., ABOM 21-22), but he ignores that this court has also madeclear that a federal Supreme Court decision applying the Fourth Amendment“ought to be followed” in assessing a claim under the parallel provision inarticle I, section 13 of the California Constitution, ““mless persuasive reasons are presented for taking a different course.” (People v. Teresinski (1982) 30 Cal.3d 822, 836 (“Teresinski”’); see also Raven v. Deukmejian (1990) 52 Cal.3d 336, 353 (‘Raven’) {requiring “cogent reasons’” and “good cause for departure” from federal approach].) Buzafails to establish any persuasive reason for this court to depart from that principle of “deference”in the present case. (Raven, supra, at p. 353.) A. The Starting Point for This Court’s Analysis Should be to Consider Maryland v. King Buza’s most sweeping argumentis that the court should disregard the Fourth Amendmentand King whenit addresses his claim undersection 13, and instead should focus only on state constitutional principles. (ABOM 21-23.) The cases he cites do not support that argument. They generally fall into two categories: cases where the federal Supreme Court has not yet spoken on a question, and cases where this court choosesto adhereto its own prior precedentrather than follow a later federal decision. Neitherset of cases is germanehere. In the first category, for example, Buza cites People v. Cook (1985) 41 Cal.3d 373, which addressed whether police could survey the defendant’s backyard from a fixed-wing aircraft without obtaining a warrant. The United States Supreme Court had recently granted certiorari and heard argumentin a case presenting the same question under the Fourth Amendment, but had not yet issued a decision. (/d. at p. 376, fn. 1.) With no clear federal answer, this court held that the practice violated section 13. (ibid.) Similarly, Buza points to this court’s decision invalidating California’s ban on same-sex marriage under the equal protection clause of the state Constitution. (See Jn re Marriage Cases (2008) 43 Cal.4th 757.) As he acknowledges, however, that decision came “seven years before the U.S. Supreme Court” addressed the same issue underthe federal Constitution. (ABOM 22.) Both cases stand only for the obvious proposition that this court may chooseto address a question independently underthe state Constitution when the United States Supreme Court has not yet resolved a parallel question under the federal Constitution. They provide no basis for ignoring, or declining to follow, a recent federal decision that did address a parallel search-and-seizure issue. ; Thecases in the second category are also inapposite. People v. Ruggles (1985) 39 Cal.3d 1 concerned whetherit was permissible for police to conduct a warrantless searchof closed containers in the trunk of a defendant’s car. This court had previously held that the warrantless search of a tote bag in a defendant’s trunk violated the Fourth Amendment. (See id, at p. 9, citing People v. Minjares (1979) 24 Cal.3d 410.) Meanwhile, the federal Supreme Court’s decisions on the subject had “followed a wandering course,” with one case “appear[ing] to adopt [the] analysis in Minjares,” and a later decision “express[ing] a contrary view,” thoughstill “not definitively determin[ing] the issue.” (Ruggles, supra, at pp. 10-11, citing Arkansas v. Sanders (1979) 442 U.S. 753 and United States v. Ross (1982) 456 U.S. 798.) Under those circumstances, this court chose to “reaffirm the holding in Minjares onthe basis ofarticle I, section 13 of this state’s Constitution,” rather than “await more definitive guidance” from the federal Supreme Court. (Ruggles, supra, at pp. 13, 11.) Similarly, in Serrano v. Priest (1976) 18 Cal.3d 728 (“Serrano II’), this court had previously held thatstrict scrutiny applied to a claim involving equal protection and educational rights. (See Serrano v. Priest (1971) 5 Cal.3d 584, 614-615 (“Serrano I’).) The United States Supreme Court then held that a claim alleging discrimination on the basis of wealth was subject only to rational basis review under the federal Constitution. > See also In re Johnson (1965) 62 Cal.2d 325, 329 [recognizing state constitutional right to counsel in misdemeanorcases before federal decision in Argersinger v. Hamlin (1972) 407 U.S. 25]; cf. People v. Monge (1997) 16 Cal.4th 826, 873 (dis. opn. of Werdegar, J.) [noting that policy of deferenceis “not presented” where“the United States Supreme Court has never ruled on the precise issue before us”’]. (See San Antonio Independent School Dist. v. Rodriguez (1973) 411 U.S. 1, 40.) In SerranoII, this court adhered to its strict-scrutiny approach as a matter of state constitutional law. (Serrano IT, supra, at pp. 761-766.) The court’s decision in People v. Ramos (1984) 37 Cal.3d 136 (“RamosIP’) followed a comparable pattern. The court held that the “Briggs Instruction” in capital cases violated the state due process clause, notwithstanding a recent United States Supreme Court decision permitting the instruction under federal law. (See California v. Ramos (1983) 463 U.S. 992.) As in SerranoIT, this court emphasizedthat it had previously held the instruction unconstitutional on federal grounds before it was reversed by the Supreme Court. (Ramos II, supra, at pp. 142, 150-151, citing People v. Ramos (1982) 30 Cal.3d 553 (“Ramos I’). Here, in contrast to Ruggles, Serrano I, and RamosII, there is noprior decision of this court prohibiting the State from collecting DNA samples from felony arrestees at booking, under either section 13 or the Fourth Amendment. Buzaalso cites several concurring and dissenting opinions from past decisions of this court (see ABOM 22), but those opinions do not support * See also Cardenas v. Superior Court (1961) 56 Cal.2d 273, 276 [declining to follow recent federal Supreme Court decision regarding double jeopardythat “does not accord with the uniform construction placed by this court upon the jeopardy provision of the California Constitution’’]; cf. Stone v. Superior Court (1982) 31 Cal.3d 503, 510 [discussing this court’s double jeopardy jurisprudenceand noting that “we remain free to delineate a higher level of protection” under the California Constitution than provided by the Fifth Amendment]. In People v. Wheeler (1978) 22 Cal.3d 258, which held that the state Constitution prohibits discriminatory peremptory challenges, the court largely relied on California case law that had developed on a separate course from federal law because it pre-dated the federal Supreme Court’s 1975 decision to incorporate the “representative cross-section rule” of the Sixth Amendmentagainst the states. (See id. at pp. 270-272, citing Taylor v. Louisiana (1975) 419 US. 522.) his argument here. In People v. Barrett (2012) 54 Cal.4th 1081 (“Barreit’), the court rejected a claim that the civil commitmentstatute for mentally disabled individuals violated the equal protection provisions of the federal and state Constitutions. The court followed the rational basis standard applied by the federal Supreme Court in Heller v. Doe (1993). 509 U.S. 312. (See Barrett, supra, at p. 1111, fn. 21.) Justice Werdegar and Justice Liu would instead have adopted the arguably more protective standard of Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432 as a matter of state constitutional law. (See Barrett, supra, at p. 1113 (conc. & dis. opn. of Werdegar,J.); id. at pp. 1144-1146 (conc. & dis. opn. of Liu,J.).) That position, which did not command a majority of the court, is different from the argument Buza makes here. Where the federal Supreme Court “hands down a decision which limits rights established by earlier precedent”ofthat court, that development may weigh in favorof this court declining to follow the new decision as a matter of state constitutional law. (Teresinski, supra, 30 Cal.3d at p. 836; see post, pp. 11-12.) Here, however, Marylandv. King was a case of first impression that did not limit previously established rights. (See opn. p. 21.) In Sands v. Morongo Unified School District (1991) 53 Cal.3d 863, the court considered whetherthe federal Constitution prohibited religious invocations and benedictions at public high school graduation ceremonies. The court held the practice invalid under the First Amendment based on an analysis of federal precedent. (See id. at pp. 870-882 (lead opn. of Kennard, J.).) Buza cites Justice Mosk’s concurrence, which argued for striking the practice down based only on existing state constitutional doctrine. (See id. at pp. 905-914.) Only Justice Mosk, however, would have taken that approach; and only two other justices would have held, in 10 the alternative, that the practice violated the state Constitution.’ In any event, Sands presented a stronger case for departing from federal precedent than this case. The state constitutional provisions before the court included not only the establishmentclause of the state Constitution, which tracks the First Amendment’s establishment clause, but also two other provisions concerning religion that “hav[e] no counterparts in the federal charter.” (d. at p. 883 (lead opn. of Kennard, J.); see Teresinski, supra, 30 Cal.3d at p. 836 [noting that differences “in the language or history of the California provision” may weighin favor of departing from federal precedent]; post, pp. 12-13.)° B. The Court’s Precedents Counsel Deferring to King Not only is it appropriate for the court to begin its section 13 analysis by considering King, as the State has explained (RBOM 21-26), the factors this court considers when deciding whetherto defer to a prior federal decision counsel in favor of following King here. Buza does not contend that King “limits rights established by earlier [federal] precedent.” > Those justices joined a three-paragraph analysis in the lead opinion that containedlittle discussion of state authority and emphasized that “federal cases may supply guidance for interpreting” parallel provisions of the state Constitution. (Sands, supra, 53 Cal.3d at pp. 882-883 (lead opn. of Kennard, J.); see id. at p. 902 (conc. opn. of Lucas, C.J.) [noting that only “three justices have concluded that the practice violates ourstate Constitution”].) Meanwhile, Chief Justice Lucas explainedin his concurrence whyhebelieved it was appropriate “to consider the federal constitutional issues first and forgo consideration of the state constitutional issues in this case,” noting the court’s “policy of deference to United States Supreme Court decisions” concerning parallel constitutional provisions. (Cd. at pp. 902, 903.) © See also Sands, supra, 53 Cal.3d at p. 907 (conc. opn. of Mosk, J.) [‘‘Particularly with regard to the provisions of the California Constitution that apply to religion in public schools [citations], the different history of our charter justifies the difference in interpretation.”’]. 1] W e s t i e D A M te at he oy (Teresinski, supra, 30 Cal.3d at p. 836.) Rather, he agrees that King “was the Court’s first DNA search case.” (ABOM 37.) Nor does he arguethat following King would “overturn established California doctrine affording greater rights to the defendant.” (Teresinski, supra,at p. 837; see opn.p. 21 [“following King would not overturn established California doctrine affording greater rights”].)’ Instead, Buza focuses on twootherfactors: “the language [and] history” of the state constitutional provision, and dissenting opinions or academic commentarycriticizing the federal decision. (Teresinski, supra, at p. 836; see ABOM pp.28-30, 34-39.) Neither factor provides a persuasive reason for this court to depart from King; nor do any of the other arguments raised by Buza. 1. There is no material textual difference between section 13 and the Fourth Amendment Regarding the constitutional text, Buza correctly acknowledgesthat “there is little textual difference betweenarticle I, section 13, and the Fourth Amendment.” (ABOM 36.) The two provisions are essentially identical in wording. (See Teresinski, supra, 30 Cal.3d at p. 835, fn. 9.) Moreover, section 13’s history establishes that the framers of the California Constitution intended to mirror the Fourth Amendment. (RBOM 21-22; see Browne, Report of the Debates in the Convention of California on the Formation of the State Constitution in September and October, 1849 (1850) ’ Like the Court of Appeal, Buza does contend thatsection 13 “provide[s] more robust protections than the Fourth Amendmentin the specific area of arrestee searches.” (ABOM 26,italics omitted; see opn.p. 21.) As explained below, however, the cases he cites did not purport to provide greater protections for felony arrestees at booking, and they involvedsituations where following federal precedent would have required this court to overturn established state precedent. (Post, pp. 19-20; see RBOM 26-29.) 12 p. 48.) Buza instead arguesthat the textual similarity is irrelevant, invoking this court’s observation that “‘[s]tate courts are the ultimate arbiters of state law, even textually parallel provisions of state constitutions... .’” (ABOM 36, italics omitted, quoting People v. Brisendine (1975) 13 Cal.3d 528, 548.) But it is this court’s own decisions that point to textual similarity as a significant factor in deciding whether to follow a prior federal decision. (See Teresinski, supra, 30 Cal.3d at p. 836.) When this court considered that factor with respect to the precise provision at issue here, it concluded that there is “nothing in the languageor history of’ section 13 warranting any divergence from the Fourth Amendment. (/bid.; see also id. at p. 835, fn. 9.) Buzaalso contendsthat the State’s “textual similarity argument ignores that the state’s explicit privacy clause (art. I, § 1) has no express federal counterpart.” (ABOM 37.) To the contrary, the State’s opening brief devotes more than a page to that issue. (See RBOM 22-24.) And this Geecourt has expressly clarified that the ““privacy’ protected by [section 1] is no broaderin the area of search and seizure than the ‘privacy’ protected by the Fourth Amendmentor byarticle I, section 13 of the California Constitution.” (Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 30, fn. 9 (“Hil?’).) Buzaargues that this oft-repeated rule “cannot be considered a holding of the Court” (ABOM 31-32) becauseit has appeared in cases that did not present any search-or-seizure claim (ABOM 32-33 [discussing Hill and Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992]), and originated in an opinion that did not commanda majority of the court (ABOM 31-32 [discussing People v. Crowson (1983) 33 Cal.3d 623]). But he does not respond to the State’s reliance on /n re York (1995) 9 Cal.4th 1133 (‘York’), a unanimous decision that applied this rule in resolving a challenge to the practice of conditioning own-recognizance (OR)release of 13 felony arrestees on random drug testing and warrantless searches and seizures. (See RBOM 22-23 [citing York for this point].) York involved claims under the privacy and due process provisions of the California Constitution, as well as the search-and-seizure provisions of section 13 and the Fourth Amendment. After quoting Crowson forits statement that the privacy provision “has never been held to establish a broader protection [in the search-and-seizure context] than that provided by the Fourth Amendment of the United States Constitution orarticle I, section 13 of the California Constitution,” the court conducted an analysis “guided by federal constitutional principles.” (York, supra, at p. 1149.) The court rejected the petitioners’ claims because the conditions on ORrelease did “not violate _ Fourth Amendmentprotections.” (/bid.) York confirmsthat the privacy clause does not augmentsection 13 in the context of government searches and seizures, and this rule cannot be dismissed as “dictum.” (ABOM 32.)° Next, Buza contendsthat the voters’ adoption of the privacy clause demonstrates “that Californians have a greater and more firmly-established reasonable expectation of informational privacy, for purposesofarticle I, section 13, than the residents of states without such separate privacy * According to Buza, Sheehan “demonstrates that the privacy clause may sometimes provide greater protection” than section 13, “even in a search context,” because the court held that a lawsuit challenging patdown searchesof fans by a private football team stated a claim under the privacy clause. (ABOM 32.) Sheehan follows Hill’s holding that a privacy claim may sometimesbe brought against a private entity. (See Sheehan, supra, 45 Cal.4th at p. 1001; see also Hill, supra, 7 Cal.4th at pp. 19-20.) But that does not mean the privacy clause provides greater protection than section 13 or the Fourth Amendmentin a challenge to a governmentsearch or seizure. (See York, supra, 9 Cal.4th at p. 1149.) Indeed, Hi// recognizes the co-extensive scope of the two provisions in the search-and-seizure context, even while providing for a cause of action against a nongovernmental entity. (See Hill, supra, 7 Cal.4th at p. 30, fn. 9.) 14 guarantees.” (ABOM 33-34,italics omitted.) That argumentis inconsistent with cases ranging from Crowson to York, and with the history of both the Privacy Initiative and more recent ballot measures. The ballot materials for the Privacy Initiative never suggested it would curtail the ability of law enforcement to conduct legitimate searches or seizures permitted underexisting constitutional guarantees. Rather, proponents emphasized thatthe initiative would “not prevent the government from collecting any informationit legitimately needs.” (Hill, supra, 7 Cal.4th at p. 22, italics omitted.) The measure was instead intended to “prevent misuse of this information for unauthorized purposes and [to] preclude the collection of extraneousor frivolous information.’” (bid., italics omitted; see post, pp. 55-56.) Moreover, in the years following the adoption of the Privacy Initiative, California voters approved two measures designed to harmonize application of section 13 with search-and-seizure doctrine under the Fourth Amendment. (See RBOM 23 [discussing Proposition 8 and Proposition 115].) They also adopted Proposition 69, authorizing the collection of DNA identifying information from all adult felony arrestees at booking. This history belies any argumentthat the privacy clause in section | “necessarily means” that Californians reasonably expect section 13 will prohibit law enforcement from collecting DNA identifying information at booking, even when the Fourth Amendmentpermits that very practice.” ” See generally Hill, supra, 7 Cal.4th at p. 37 [‘A ‘reasonable’ expectationof privacy is an objective entitlement founded on broadly based and widely accepted community norms.”]. 15 2. The King dissent and academic commentary do not warrant departing from King As Buzanotes, this court has “‘on occasion been influenced notto follow parallel federal decisions by the vigor of the dissenting opinions and the incisive academic criticism of those decisions.” (Teresinski, supra, 30 Cal.3d at p. 836; ABOM 35.) But the State is not aware of any case in whichsuch considerations alone have causedthis court to depart from a federal Supreme Court decision that has settled the construction of a parallel federal provision. The two examples cited in Teresinski both involved compelling additional reasons for departing from federal precedent. In one, the federal decision at issue “[could ]not be reconciled” with prior decisions of this court and was arguably “incompatible with” prior federal Supreme Court decisions. (See Com. to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 267 & fn.17, discussing Harris v. McRae (1980) 448 U.S. 297.) In the other, the federal Supreme Court held there was no right to counsel at a pre-indictment lineup after this court had reached the opposite conclusion three years earlier. (See People v. Bustamante (1981) 30 Cal.3d 88, 91-92, 95, 102, discussing Kirby v. Illinois (1972) 406 U.S. 682.) In any event, neither Justice Scalia’s dissent nor other commentary provides a persuasive reason for creating an inconsistency betweenstate and federal law in this area by declining to follow King. Buza emphasizes that King was a sharply divided decision with a spirited dissent. (ABOM 35.) Buta divided decision nonetheless settles the meaning of federal law. AndJustice Scalia’s dissent is ulttmately unpersuasive, becauseit rests on the false premise that the only interest served by collecting DNA identification information at booking is to conduct suspicionless investigations of past crimes. (See, e.g., King, supra, 133 S.Ct. at pp. 1982- 1983 (dis. opn. of Scalia, J.).) As King explains, and California’s 16 experience confirms, collection of this information at bookingis not fundamentally different from the observation and recording of other identifying characteristics, and similarly serves a range of important public interests. (See id. at pp. 1971-1974; RBOM 13-15, 32-48; post, pp. 26-28.) Moreover,the collection ofDNA identifying information as part of a felony arrest presents privacy considerations markedly different from those at issue in the “special needs” cases invoked by Justice Scalia and by Buza. In those cases, the individuals searched werenot already subjectto valid custodial arrests based on probable cause. (See King, supra, 133 S.Ct. at p. 1978; see also RBOM 24-25.) For example, Buza discusses federal cases concerning “border searches and immigration checkpoints, drug tests of certain categories of governmental employees, and administrative inspections of closely regulated businesses,” as well as vehicle checkpoints to interdict unlawful drugs and drug testing of obstetrics patients in state hospitals. (ABOM 50-51, citing City ofIndianapolis v. Edmond (2000) 531 U.S. 32 and Ferguson v. City of Charleston (2001) 532 U.S. 67; see also King, supra, at pp. 1981-1982 (dis. opn. ofScalia, J.).) As King explains, however, collecting a DNA identification sample from arrestees at booking, for limited purposes enforced bystrict controls, “differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as ‘special needs’ searches.” (King, supra, 133 S.Ct. at p. 1978, someinternal quotation marks omitted.)'° '° The sole “special needs” decision ofthis court that Buzacites likewise involved wholly different privacy considerations. (See People v. » Maikhio (2011) 51 Cal.4th 1074 [sustaining fish and game warden’s stop of car to demanddisplay of angler’s catch, without any reasonable suspicion that the angler violated any statute or regulation].) 17 Finally, Buza argues that this court should disregard King becauseit has attracted criticism from some commentators. (ABOM 35-36 & fn. 22.) It is unsurprising that a divided Supreme Court decision in an important Fourth Amendmentcase has generated debate outside the courts. That debate is not a sound reasonforthis court to create a disparity betweenstate and federal law on the question at issue here—especially when the considered judgment of a majority of the federal Supreme Court is consistent with statutes adopted by 28 states and the federal government; the decisions of federal courts of appeals that addressed the question prior to King; and the views of other commentators in the public sphere. 3. Past cases applying section 13 to arrestees do not justify departing from King Like the Court of Appeal, Buza maintains that section 13 “has historically provided more robust protections than the Fourth Amendment l See, e.g., United States v. Mitchell (3d Cir. 2011) 652 F.3d 387 (en banc) (“Mitchel?’) [rejecting Fourth Amendmentchallenge to 42 U.S.C. § 14135a(a)(1)(A)]; National Conference of State Legislatures, DNA Arrestee Laws [as of Oct. 12, 2015] [describingstate statutes]; Amar & Katyal, Why the Court Was Right to Allow Cheek Swabs, N.Y. Times (Sune 3, 2013) [Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning ofthe Fourth Amendment. Andhis version of the Fourth Amendment would lead to absurd results.”’]; Bower, Maryland v. King: Textualism Meets Reason (2013) 14 Engage: J. Federalist Soc’y Prac. Groups 29, 29 [“[A]Il things considered, the majority got it right.”]; cf. Kaye, Why So Contrived? Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King (2014) 104 J. Crim. L. & Criminology 535, 550, 593 [criticizing the dissent in King as “inaccurate” and “superficial,” and arguing that the dissent’s theory of the Fourth Amendment“doesnotfit all the case law and should not prevent a state from adopting a bona fide multimodal system of biometrics—including DNA along with physical features—foridentity authentication and subsequent criminalintelligence gathering made possible by modern databases”. 18 in the specific area of arrestee searches.” (ABOM 26,italics omitted; see opn. p. 21.) As the State’s opening brief explains, however, the cases identified by Buza are inapposite here. (See RBOM 26-29.) Although the court has occasionally declined to follow federal precedent on particular questions involving the search-incident-to-arrest doctrine when doing so would have required the court to overturn existing state precedent, those cases do not involve the collection of identifying information at booking and do not support Buza’s theory that section 13 compels a “more robust” protection in every case involvingarrestees. In particular, Buza points to People v. Brisendine (1975) 13 Cal.3d 528 (“Brisendine”) as evidence that this court has “struck a different balance than the U.S. Supreme Court between privacy interests and asserted institutional or security purposes in the specific area of arrestee searches.” (ABOM 27.) There, the court decidedto “adhere to [its own] precedential decisions” regarding discretionary field searches of a nonfelony arrestee’s person andeffects instead of following United States v. Robinson (1973) 414 U.S. 218, an intervening federal decision that was “irreconcilable” with this court’s precedent. (Brisendine, supra, at pp. 548, 547; RBOM 27-28.) Buzadoes not respondtothe State’s discussion of Brisendinein its opening brief, or explain how that case could justify departing from King where,as here, this court has not previously addressed the question presently before it. Buza also cites People v. Laiwa (1983) 34 Cal.3d 711, People v. Longwill (1975) 14 Cal.3d 943, and People v. Norman (1975) 14 Cal.3d 929. (ABOM 27.) Thosecases likewise provide no support for departing from King. In Longwill and Norman, the court simply followed Brisendine, declining to apply the federal decision in United States v. Robinson that was inconsistent with prior California precedent. (People v. Longwill, supra, at pp. 951-952; People v. Norman,supra, at pp. 938-939; see RBOM 19 27.) In Laiwa, the court had no occasion to decide whetheror not to follow federal precedent because the “sole contention” made by the People on appeal wasthat prior state law permitted the search. (See People v. Laiwa, supra, at pp. 724-725; see also RBOM 29,fn. 13.) Buza does not respond to the State’s arguments concerning any ofthese cases. 4. This court’s decisions concerning Proposition 8 and Proposition 115 provide no support for departing from King Buzaalso argues that this court’s decisions in Raven and Jn re Lance W. (1985) 37 Cal.3d 873 are consistent with the decision below. (ABOM 23-26.) As the State has explained, however, those cases weigh in favor of following King. (See RBOM 23-24.) Raven concerned Proposition 115, which the voters adopted in 1990. (See Prop. 115, approved by voters, Prim. Elec. (June 5, 1990).) Among other things, that initiative provided that the rights “to be free from unreasonable searches and seizures” and “to privacy” would be construed in criminal cases “in a manner consistent with the Constitution of the United States.” (/bid.) This court held that Proposition 115 amounted to an invalid revision of the California Constitution, not because it continued the policy of deference to federal Supreme Court decisions, but becauseit created a mandatory and categorical “imperative” that precluded California courts from interpreting the state Constitution in a manner moreprotective than the federal Constitution. (Raven, supra, 52 Cal.3d at p. 354.) In so holding, the court reiterated its longstanding principle “that ‘cogent reasons must exist before a state court in construing a provision ofthe state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.’” (id. at p. 353, quoting Gabrielli v. Knickerbocker (1938) 12 Cal.3d 85, 89.) TheState relies on the sameprinciple here. 20 In Lance W., the court construed Proposition 8, which prohibits the exclusion of “relevant evidence .. . in any criminal proceeding.” (Lance W., supra, 37 Cal.3d at p. 879; see Cal. Const., art. I, § 28, subd. (f)(2).) Proposition 8 effectively eliminated differences between state and federal doctrine regarding exclusion, requiring state courts to apply Fourth Amendment precedent when resolving suppression motions. (See Lance W., supra, at p. 890.) In light of Proposition 8, a decision creating a disparity between state and federal law on the question at issue here would have anomalousresults, such as allowing courts to consider evidence derived from DNAidentifying information collected in Maryland and other states, while prohibiting California from collecting that information during its own felony arrests. Although Proposition 8 did not affect the “substantive scope” of section 13 (id. at p. 886), the possibility of such anomalies makesit particularly appropriate here for the court to follow its historical policy of deference to federal Supreme Court decisions. C. The Decision of the Vermont Supreme Courtin State v. Medina Provides NoBasis for Departing from King Finally, Buza arguesthat State v. Medina (Vt. 2014) 102 A.3d 661 (“Medina”) provides “compelling grounds” for breaking from Kingin this case. (ABOM 91.) It does not. Unlike this case, Medina did not involve a settled state policy of deference to United States Supreme Court decisions regarding parallel constitutional provisions. 7 Instead, Medina analyzed Vermont’s arrestee-collection statute under a “special needs” framework adopted by the Vermont Supreme Court in a prior decision upholding the collection ofDNA information from convicted felons. (See Medina, supra, 1 Significantly, unlike the text of section 13, the text of the Vermont constitutional provisionat issue in Medina doesnotclosely parallel the Fourth Amendment. (See Vt. Const., ch. I, art. 11; Medina, supra, 102 A.3d at p. 72 [quotingarticle 11}.) 21 at pp. 669-683, citing State v. Martin (2008) 955 A.2d 1144.) Thatis not the framework this court has used in assessing searches and seizures of either convicts or arrestees—in the DNA contextor otherwise. (See People v, Robinson (2010) 47 Cal.4th 1104, 1120-1123 (“Robinson”) [using general balancing analysis to conclude that collection ofDNA identifying information from convicted offenders is consistent with Fourth Amendment]; York, supra, 9 Cal.4th at pp. 1148-1151 [using general balancing to reject section 13 and Fourth Amendmentchallenge to warrantless searches ofarrestees released on their own recognizance].) As discussed above,there is no basis in federal or California precedent for invoking the “special needs” doctrine here. That doctrine applies to programmatic searchesofthe public at large or broad categories of citizens whoare not already subject to a custodial arrest based on probable cause. (See ante, p. 17; King, supra, 133 S.Ct. at p. 1978.) '3 Even if analyzed under a “special needs” framework, the DNA Actis reasonable. As the Vermont Supreme Court recognized,the collection ofDNA identifying information from arrestees does serve such needs. (See Medina, supra, 102 A.3d at p. 678 [““‘assist[ing] im identifying personsat future crime scenes’”’]; ibid. [“identifying missing persons”; ibid. [“deterrence”].) Weighed against the minimal incrementalintrusion on the legitimate privacy expectations of an individual whois already subject to a custodial arrest, those and other special needs served by the collection establish that the DNA Act is reasonable. Medina reached a different conclusion only after overstating the intrusion on arrestees’ privacy interests and minimizing the public interests at issue. (See Medina, supra, at pp. 679-683.) 22 “Til. THE DNA ACTIS INDEPENDENTLY REASONABLE UNDER SECTION 13 Evenif this court assesses the DNA Act independently under section 13, it should sustain the conviction at issue here. Any such analysis must balance the public interests served by the DNA Act against any intrusion on an arrestee’s legitimate privacy interests. (See, e.g., Robinson, supra, 47 Cal.4th at p. 1120; RBOM 30.) Here, the analysis must also take account of the fact that Buza challenges Proposition 69, a measure adopteddirectly by the people. Such statute is presumedto be valid, and may not be struck down unlessit appears “clearly, positively, and unmistakably”that the challenged provisions violate the state Constitution. (Legislature v. Eu (1991) 54 Cal.3d 492, 501; see RBOM 30.) Buza does not dispute either the general balancing standard or the strong presumption of constitutionality that applies in the context of Proposition 69. As the State’s opening brief explains, the balance ofinterests establishes that it is reasonable for California to require adult felony arrestees to provide DNA identifying information when they are booked. A “DNAprofile is arguably the most discrete, exclusive meansofpersonal identification possible.” (Robinson, supra, 47 Cal.4th at p. 1134, internal quotation mark omitted, quoting State v. Dabney (Wisc.Ct.App. 2003) 663 N.W.2d 366, 372.) As with other kinds of identifying information, such as photographs, fingerprints, tattoos, or scars, collecting identifying DNA information at the time of an arrest and then maintainingit in law enforcement records serves important public interests. It helps appropriate officials process arrestees for the crime of arrest by learning more about their past criminal conduct and dangerousness; confirm whoarresteesare; dispel suspicion from innocent suspects; identify missing persons; and deter or solve future crimes that arrestees may commit. (See RBOM 35-48.) Those powerful interests outweigh any incremental intrusion on the privacy 23 interests of individuals who are already subject to valid custodialarrests, in light of the DNA Act’s robust privacy protections andstrict limitations on the State’s use of DNA information. (See RBOM 52-66.) Buza again argues that the DNA Actis unreasonable becauseit differs from the Marylandstatute with respectto thelist of crimes covered, the timing of sample analysis, and the process for expunging samples and DNA identifying information. (See, e.g., ABOM 87-89.) Noneofthese distinctions between the two laws affected Buza. First, although he criticizes California for collecting DNA identifying information from all adult felony arrestees instead ofjust those arrested for “violent” or “serious” offenses (e.g. ABOM 65), Buza wasarrested for arson, a crime that even he does not describe as “non-serious” or “non-violent.” Second, Buza refused to give a DNA sample until after he was convicted for that crime. Third, because he was convicted, Buza has no right to expungement. In any event, the specific choices made by California in framing its DNA collection program are consistent with those of the federal government and manyotherstates, and do not intrude unreasonably on any legitimate privacy interest. A. Buza Ignores the Long History of Collecting Identifying Characteristics from Arrestees at Booking Buza’s arguments simply ignore the extensive body of precedent regarding the collection of identifying information from arrestees. As the State explained in its opening brief, California has a long history of collecting and recording the identifying characteristics of arrestees at booking. (See RBOM 32-35.) That information has always served multiple important interests, such as allowing officials to learn about an arrestee’s criminal background and dangerousness, and informing decisions about charging,release, bail, and the exercise of prosecutorial discretion. This court has rejected challenges to the government’s retention and use of 24 identifying information from arrestees. In Loder v. Municipal Court (1976) 17 Cal.3d 859, 864-865 (“Loder”), the court unanimously rejected a state constitutional challenge to the governmentretaining and using anarrest record from an individual who was never charged or convicted, noting the State’s “compelling interest” in such records, which contain photographs, fingerprints, and “other recorded physical description[s].” In People v. McInnis (1972) 6 Cal.3d 821 824-826 (‘McInnis’), the court approved the practice of retaining a booking photograph from a prior arrest and usingit to identify the perpetrator of a later crime. Courts elsewhere have reached similar results. '* These cases also establish that the kind of identifying information that may be collected from arrestees is not frozen in time. For much ofthe nineteenth century, written records of offenders’ distinguishing features were the only available identifying characteristics. (See Cole, Suspect Identities (2001) pp. 10-11.) Later, technological advancements enabled the governmentto collect fingerprints and photographs as well. (Seeid. at pp. 20-22, 118, 196.) Those advancements have allowed the governmentto maintain a multifaceted set of identifying characteristics about each arrestee that better serves the public’s interests. Courts have not viewed the availability of one type of identifying characteristic as a reason for prohibiting the government from collecting another, complementary identifier. (See, e.g., Haskell v. Brown (N.D. Cal. 2009) 677 F.Supp.2d 1187, 1199 [“The more ways the governmenthasto identify who someone is, the better chanceit has of doing so accurately.”].) * For example, the “blanket fingerprinting of individuals who have — been lawfully arrested or charged with a crime” has met with “universal approbation.” (Mitchell, supra, 652 F.3d at p. 411; see Smith v. United States (D.C. Cir. 1963) 324 F.2d 879, 882 [collecting cases]; see also RBOM 33-34 & fn. 14 [same].) . 25 The balancing analysis in the present case should be conducted with this background in mind, but Buza ignores it. He does not discuss Loder or McInnis, or even cite them. Andhe offers no persuasive explanation why our state Constitution would permit the governmentto collect, retain, and use a range of identifying characteristics from arrestees, while prohibiting the government from obtaining DNA profiles—the most accurate identifying characteristic available. (See Robinson, supra, 47 Cal.4th at pp. 1134, 1141.) B. California Has a Compelling Interest in Collecting DNAIdentification Information from Arrestees California’s collection ofDNA identification information from felony arrestees advances the same interests that are served by the collection of other identifiers, but in a particularly powerful way. 1. DNAidentification profiles are powerful identifiers that serve important public interests DNAidentification information offers ‘“‘as close to an infallible 999measure of identity as science can presently obtain.’” (Robinson, supra, 47 Cal.4th at p. 1141; RBOM 36-39.) Obtaining DNAidentification profiles from felony arrestees at booking and preserving them in confidential databases serves a range of important public interests. Those interests are described in detail in the State’s opening brief. (RBOM 39-48.) They include the following: First, DNA profiles allow law enforcement to learn whether the arrestee is connectedto prior unsolved crimes,“a critical part of his identity that officers should know whenprocessing him for detention.” (King, supra, 133 S.Ct. at p. 1971; see Mitchell; supra, 652 F.3d at p. 414; Haskell v. Brown, supra, 677 F.Supp.2d at p. 1199; RBOM 39-43.) Ifjail officials obtain this information when the arrestee remains in pretrial detention,it can inform security decisions at the jail and release decisions, including 26 those made under the Criminal Justice Realignment Act. (See, e.g., King, supra, at p. 1972-1974.) Ifthe arrestee has already been released on bail or his own recognizance whenofficials obtain that information, it can provide a basis for reconsidering that decision. (/d. at p. 1974; cf. Loder, supra, 17 Cal.3d at p. 867.) In any event, the information may inform the prosecutor’s decisions regarding charging and other matters. (See Loder, supra, at p. 866.) The availability ofDNA identifying information for these purposes helps to promote “moreefficient law enforcement and criminal justice,” an interest this court has already recognized as “compelling.” (d. at p. 864.) Second, DNA identification information may be used to helpconfirm whoan arrestee is at booking. At present, law enforcementprimarily uses fingerprints for this purpose, but the collection ofDNA profiles helps the State to improve the accuracy of the fingerprint database. (See RBOM 43- 44.) The usefulness of DNA information for this purpose will only improve in coming years, as “Rapid DNA”technology becomes widely available, allowing the State to obtain DNA identification profiles in a matter of hours.’° | Third, a “hit” that results from comparing arrestee DNA profiles to profiles from unsolved crimes can help dispel suspicion. that might ace otherwise focus on innocent persons. This advances “‘the overwhelming public interest in prosecuting crimes accurately.” (Mitchell, supra, 652 F.3d at p. 415; see King, supra, 133 S.Ct. at p. 1974; RBOM 44-45.) 'S See FBI, Rapid DNA or Rapid DNA Analysis [as of Oct. 12, 2015]; Cal. DOJ, BFS DNA Frequently Asked Questions (“FAQs”) [Effects of the All Adult Arrestee Provision, Q2] [as of Oct. 12, 2015]. 27 Fourth, the DNA profiles collected from arrestees at booking aid in locating people who have gone missing, an undeniable state interest. (See Pen. Code, § 14250; id. § 299.5, subd. (i)(1)(A); Prop. 69, Gen. Elec. (Nov. 2, 2004) § II, subd. (d)(1); RBOM 45.)’° Fifth, comparing arrestees’ DNA identifying information to profiles obtained from crime scenes substantially improves the State’s ability to identify the perpetrators of unsolved crimes and crimes committed in the future. (See RBOM 45-48.) This serves a “strong governmentinterest” (United States v. Hensley (1985) 469 U.S. 221, 229), and “helps bring closure to countless victims of crime” (United States v. Kincade (9th Cir. 2004) 379 F.3d 813, 839 (“Kincade”); see Loder, supra, 17 Cal.3d at p. 865 [noting that identifying characteristics in arrest records “may be used by the police in several ways for the important purpose of investigating and solving similar crimesin the future”’]). 2. California uses arrestees’ DNA information only as an identifying characteristic Buza neverdisputes that the public interests described in the State’s opening brief are important. Instead, he counters that the “true purpose” underlying the DNA Actis “ordinary law enforcementinvestigation, not ‘identification’ in any conventional sense of the term” (ABOM 58,18, capitalization omitted), and argues that this renders the DNA Act | constitutionally invalid (ABOM 50-52). That argumentfails. The identification profiles that California obtains from arrestees’ DNAsamples are “only useful for humanidentity testing,” and do not disclose any sensitive information about the arrestee. (Butler, Advanced Topics in Forensic DNA Typing: Methodology (2012) p. 240 'S All further statutory references are to the Penal Code unless otherwise indicated. 28 (“Methodology’).) Indeed, the loci that are measured by a DNAprofile “were purposely selected because they are not associated with any known physical or medical characteristics.’” (Kincade, supra, 379 F.3d at p. 818, quoting H.R. Rep. No. 106-900(D, 2d Sess., p. 27 (2000).) DNA profiles therefore “function as identification records not unlike fingerprints, photographs, or social security numbers.” (Boroian v. Mueller (1st Cir. 2010) 616 F.3d 60, 65.) Aswith those otheridentifiers, the government uses DNA profiles for identification purposes. It compares twoidentification profiles to see if they match, with the match indicating that the same person was the source of the DNA usedto generate each profile. (See RBOM 37;see generally Haskell v. Brown, supra, 677 F.Supp.2d at pp. 1190-1191.) Exceptforits greater precision, that analysis is not materially different from comparing two photographs, twosets of fingerprints, two scars, or two tattoos for identification purposes. Regardless of whatidentifying metric is used,it can yield the same kind of information about an arrestee’s criminalhistory. That information—“acritical part of [an arrestee’s] identity” (King, supra, 133 S.Ct. at pp. 1971-1972)—is crucial to making informed decisions about processing the arrestee and “promot{ing] more efficient law enforcement and criminal justice.” (Loder, supra, 17 Cal.3d at p. 864;see id. at pp. 864- 867; ante, pp. 26-28.) Buza responds by dividing the State’s interests in collecting and recording identifying characteristics from arrestees into two categories— one he acknowledgesas “legitimate” and one he contends is impermissible. (E.g., ABOM 52.) Under Buza’s paradigm,it is legitimate for the State to use identifying characteristics to “determin{e] an arrestee’s identity—who the person is.” (/d. at p. 58.) That includes “verifying the arrestee’s true name”as well as conducting a search for “any documentedhistory of prior criminal convictions, pending chargesor arrests.” (Ud. at pp. 55, 54 italics 29 omitted.) It is impermissible, however, for law enforcement to collect an arrestee’s identifying characteristics for purposes of learning anything abouthis “unknownpast conduct.” (/d. at p. 54, alteration and quotation mark omitted, quoting King, supra, 133 S.Ct. at p. 1973 (dis. opn. of Scalia, J.).) In other words, Buzabelieves that the state Constitution bars law enforcement from obtaining identifiers at booking if they uncover “any uncharged and unsuspected criminal conduct the arrestee may have committed in the past.” (ABOM 56.) Buza’s argumentfails in two respects. First, the State’s recognizedinterest in identifying arrestees extends well beyond confirming their true names, even on Buza’s narrow understanding.'’ Buza concedesthatit is essential for law enforcementto learn about arrestees’ prior criminal history, including pending charges. In California, law enforcementroutinely uses “John Doe”arrest warrants that describe the suspect only by reference to his DNAprofile, a practice this court has approved. (See Robinson, supra, 47 Cal.4th at pp. 1137-1143.) For this category of arrest warrants, a DNA profile is the only type of identifying information obtained at booking that can serve the State’s interest in obtaining “any documentedhistory of .. . pending charges or arrests.” (ABOM S54,italics omitted.) So Buzais not correctin arguing that fingerprints are “more than sufficient” to serve even the narrow identification purposethat he believes 1s legitimate. (ABOM 59.) Second, there is no basis for drawing a constitutionalline that allows law enforcementto use an arrestee’s identifying characteristics to learn '! Moreover, as noted above, the State does use DNAprofiles to help improve the process for confirming an arrestee’s nameat booking, and the usefulness of DNA forthis purpose will only improve with the widespread adoption of Rapid DNAtechnology. (See ante, p. 27; RBOM 43-44.) 30 about his known criminal history, while prohibiting use of identifying characteristics to learn whether the arrestee is connected to previously unsolved crimes. Either way, the information is highly relevant in ascertaining whoitis that the authorities are dealing with. (See King, supra, 133 S.Ct. at pp. 1971-1972; Loder, supra, 17 Cal.3d at pp. 866-868.) Moreover, this is another way in which DNAidentifying informationis indistinguishable from fingerprint identifiers. When police collect fingerprints from arrestees at booking, they use those identifying characteristics not only to confirm the arrestee’s name and accesshis known criminal history, but also to query the database of latent fingerprints corresponding to unsolved crimes.’® “In this respect the only difference between DNAanalysis and the accepted use of fingerprint databasesis the unparalleled accuracy DNA provides.” (King, supra, at p. 1972.) Underlying Buza’s argumentis the theory that Proposition 69 is invalid becauseit also has the important beneficial effect of advancing the public interest in “facilitat[ing] crime-solving through “cold hits” to unsolved cases.” (ABOM 56,citation omitted; see id. at pp. 58-59.) Identifying the perpetrators of unsolved crimes and crimes committed in the future is one benefit of the State’s collection and use of arrestee DNA profiles. The State has never disputed that. (See ante, p. 28; RBOM 45-48.) This is not the only benefit of Proposition 69, but it is surely an important one. (See Prop. 69, Gen. Elec. (Nov. 2, 2004) § H.) The collection ofDNA identifying information from all felony arrestees at booking has measurably contributed to the State’s ability to catch criminals. (See RBOM 46-47.) For example, the likelihood that the State’s DNA identification database '8 See, e.g., National Institute of Justice, The Fingerprint Sourcebook p. 6-10 [as of Oct. 12, 2015]; RBOM 38 & fn. 16. 31 will provide a lead when police submit a sample from a crime scene has almost doubled since the current arrestee provisions went into effect—from 35% in 2008 to 67.9% in 2012.’ Before the current arrestee provisions wentinto effect, California recorded fewer than 8,000 hits between offender DNAprofiles and profiles linked with unsolved crimes; since then, the State has recorded more than 31,000 hits.°’ In any reasonableness balancing, these benefits of Proposition 69 weigh in favorofits constitutionality—notagainst it. (Loder, supra, 17 Cal.3d at p. 865 [considering the use of identifiers in arrest records “for the important purpose of investigating and solving similar crimes in the future”]; Mitchell, supra, 652 F.3d at p. 414 [“To the extent that DNA profiling assists the Government in accurate criminal investigations and prosecutions (both of which are dependent on accurately identifying the suspect), it is in the Government’s interest to have this information as soon as possible.”].) Buza also arguesthat the “logistics of California’s DNA testing and comparison process”indicate that California does not use DNAprofiles for any purpose other than solving cold cases. (ABOM 59,capitalization omitted.) This argumentis based on the fact that, at present, it takes around 30 days on average to generate an identification profile from an arrestee’s DNAsample. See Haskell v. Brown, supra, 677 F.Supp.2d atp. 1201.7) Once again, Buza simply does not respond to the State’s arguments on this '? See FAQs, supra, [Effects of the All Adult Arrestee Provision, Q2]. : *° See CAL-DNAHits Reported January 1984 to March 2015 [as of Oct. 12, 2015]. *! The period is often much shorterin a given case, and emerging Rapid DNAtechnology holds the potential to provide DNA profiles within a few hours of collection. See FAQs, supra, [Effects of the All Adult Arrestee Provision, Q2]. 32 point. (See RBOM 41-42.) It is true that, in manycases, arrestees will have been released from custody before the State obtains the arrestee’s DNAprofile. But information that the arrestee has been linked to another crime remains highly relevant for processing the crime of arrest under those circumstances: it can provide a basis for revoking bail or own- recognizance release, and can inform a range of prosecutorial decisions going forward. (See ante, pp. 26-27.) In those cases where the arrestee remains in custody when law enforcement acquires such information, the information can also have a significant effect on decisions about appropriate security measures and release. (/bid.) Moreover, regardless of the timing of an arrestee’s release in a given case, the collection ofDNA profiles helps the State to identify missing persons and to improveits process for confirming whoarrestees are at booking. (See ante, pp. 27-28.) Ultimately, the “question of how longit takes to process identifying information obtained from a valid search goes onlyto the efficacy of the search for its purpose of promptidentification, not the constitutionality of the search.” (King, supra, 133 S.Ct. at p. 1976.) 3. Collecting DNA information from all felony arrestees at the time of booking advances significant state interests Buza argues that the public interests served by the DNA Act are diminished because the “Act sweeps morebroadly” than necessary in two respects: it appliesto all adult felony arrestees; and it requires collection and analysis of the sample to begin at booking. (E.g., ABOM 6-7.) This argumentfails at the threshold because search-and-seizure doctrine contains no least-restrictive-means requirement. Even if California could effectively serveits interests by narrowing the DNA Actin the ways suggested by Buza, that does not meanit is constitutionally bound to do so. (Cf. City of Ontario v. Quon (2010) 560 U.S. 746, 763; People v. Maikhio, supra, 51 33 Cal.4th at pp. 1100-1101; RBOM 49.) In addition, both features of the DNAAct do serve important public interests. a. Collection from all adult felony arrestees California collects DNA identifying information from all adult felony arrestees, as do more than a dozen other States and the federal government. (§ 296, subd. (a)(2)(C); see ABOM 66 fn. 37.)Buza contendsthat“it makes no sense to collect DNA from every felony arrestee” because it “is more likely that defendants charged with rape or other violent crimes may have previously committed similar offenses.” (ABOM 67.) Experience demonstrates, however, that many people arrested for nonviolent felonies in California have been linked by their DNAidentification profiles to violent and heinous crimes such as rape and murder. (RBOM 50-51; cf. Florence v. Bd. ofChosen Freeholders of County ofBurlington (2012) SUS. ____ [132 S.Ct. 1510, 1520] (“Florence”); King, supra, 133 S.Ct. at p. 1971). In People v. Shamblin (2015) 236 Cal.App.4th 1, for example, a man arrested for a drug offense was linked by his DNAprofile to the rape and murder of an elderly woman three decades earlier. Indeed, a 2012 study reviewing a limited sample of hits between arrestee DNAprofiles and forensic samples showedthat a majority of the hits relating to rape, murder, and robbery crimes resulted from arrests for nonviolent offenses. (See Cal. DOJ, Study #1: Arrestee Hits to Violent Crimes [as of Oct. 12, 2015] [identifying 14 States that collect from all felons]. *3 Tt is curious that Buza invokesthe interests of those arrested for “nonviolent” offenses, given that he insists he is making an as-applied challenge to the DNA Act(see opn. pp. 21-22, fn. 7), and he was arrested for arson aftersetting fire to a police squad car (see RBOM 3-4). 34 sites/all/files/agweb/pdfs/bfs/arrestee_2013 pdf> [as of Oct. 12, 2015].) Whetheror not a person arrested for a nonviolent felony is “likely” to have committed a rape, murder, or other violent crime, there is a compelling public interest in alerting law enforcement wheneveran arrestee such as Mr. Shamblin did commit such a crime. Moreover, Buza’s argument appears to be premised on the incorrect assumption that forensic DNA samplesare only obtained from the scenes of violent crimes involving blood or other bodily fluid. But modern techniques allow law enforcement to obtain DNA profiles from skin or othercells left at the scene of a burglary or nonviolent crime. (See Butler, Forensic DNA Typing (2d ed. 2005) p. 168 (“Typing”).) Knowledge that an arrestee is connected to such a crime advances the same public interests described above. (Ante, pp. 26-28.) Buza’s argumentis also based on a flawed legal premise. He suggests that the DNA Act may only be upheld if the State presents ““uncontroverted evidence’ establishing that those arrested for non-violent or non-serious felonies are likely to have committed the types of violent crimes that typically yield DNA evidence, particularly murders and sex offenses.” (ABOM68.) The law imposes no such requirement. Buzacites Rise V. Oregon (9th Cir. 1995) 59 F.3d 1556, a Fourth Amendment challenge to Oregon’s statute requiring collection ofDNA information from certain convicted offenders. In affirming the district court’s grant of summary judgment in favor of Oregon, the court noted that one of the asserted state interests was preventing recidivism, and that Oregon “produced uncontroverted evidence documenting the high rates of recidivism among certain types of murderers and sexual offenders.” (d. at p. 1561.) Given the summary judgmentposture ofthat civil case, it is hardly surprising that the court focused on whether there was “uncontroverted evidence” supporting the State’s asserted interests. But Rise did not hold or suggest 35 that a Fourth Amendmentchallengeto an arrestee-collection statute in a criminal appeal must be sustained absent a showing of “uncontroverted evidence”that the arrestees covered bythe statute “are likely to have committed” violent crimes. (ABOM 68.) Evenif it had, that rule would not have survived Maryland v. King, which imposed nosuch requirement. Finally, Buza contends that the State’s “real argument”is that obtaining DNAprofiles from arrestees will increase the numberofhits to unsolved crimes, an argument Buza says proves too muchbecauseit would support DNAcollection from any “other group[] of ordinary citizens who interact with the state.” (ABOM 70.) Of course, the legitimate privacy interests of ordinary citizens are very different from those of someone who the police have probable cause to believe has committed a felony, and who is therefore subject to a valid custodial arrest. (See RBOM 53-54; post, p. 41.) And the relevant state interests in the arrestee context include not only the total numberofhits, but also the interest in obtaining a comprehensive understanding of the past criminal activity and dangerousnessofa current felony arrestee. (See ante, pp. 26-27.) The reasonableness balancing in this case is uniqueto the arrest context. Nothing in the DNA Act authorizes the collection ofDNA identification information in the way suggested byBuza.”* ** Buzaalso arguesthat collecting DNA samples from all adult felony arrestees “slows the process” of obtaining DNAprofiles from those arrested for violent felonies. (ABOM 71.) He offers no support for this argument, other than citing Justice Scalia’s dissent in King discussing the timing of analysis in Maryland, Ohio, and Louisiana. (King, supra, 133 S.Ct. at p. 1988.) In California, it currently takes around 30 days on average to obtain a DNAprofile from an arrestee. (See FAQs, supra [Effects of the All Adult Arrestee Provision, Q2]; cf. California Department of Justice, Attorney General Kamala D. Harris Announces End to Backlog that Slowed DNA Analysis at Justice Department Labs, Jan. 25, 2012 (continued...) 36 b. Collection and analysis at booking California collects DNA from arrestees at booking and begins to analyze it immediately. (§ 295, subd. (1)(1)(C); § 296.1, subd. (a)(1)(A); see ABOM 71-82 & fn. 48.) This policy tracks the approach ofthe federal government and mostotherstates that collect DNA identifying information from arrestees.”’ Buza contendsthatit “does not serve any legitimate non- investigative purpose” to begin the process at booking, rather than waiting until after a magistrate’s probable cause determination at an arraignment. (ABOM72.) That is incorrect for at least three reasons. First, postponing collection and analysis ofDNA samples until after a judicial probable cause determination would lengthen the process of obtaining DNAprofiles in every case. (RBOM 52.) Buza contendsthat the delay would never be more than “two-to-four days” (ABOM 7), but thatis not true. Buza’s argument (ABOM 73-74) focuses on the general constitutional requirement of a “judicial determination[] of probable cause within 48 hours ofarrest.” (County ofRiverside v. McLaughlin (1991) 500 U.S. 44, 51; see ABOM 73-74.) That requirement, however, deals with arrestees who are “held in custody without having received a probable cause determination” for 48 hours. (/d. at p. 46, italics added.) Felony arrestees frequently do not remain in custody for 48 hours after their arrest, such as when theyare released prior to arraignment according to the county (...continued) [as of Oct. 12, 2015].) *> At least 17 states collect DNA samples from arrestees at booking, and the vast majority of those states permit analysis to begin immediately. (See generally National Conference of State Legislatures, DNA Arrestee Laws [as of . Oct. 12, 2015].) 37 bail schedule (see § 1269b, subd. (b)), or on their own recognizance, or whenthe prosecutor delays in bringing charges. Immediate release of low- level felony arrestees has becomeincreasingly prevalent following the shift of convicted felons from state prison to county jail under Realignment. In such cases, an arrestee’s arraignment can take place well beyond two-to- four days after his arrest, and Buza’s proposed postponement would substantially delay the State’s ability to obtain DNA identifying information from thearrestee. *° Second, Buza forgets that information about an arrestee’s past criminal conduct is relevantto “the exercise of prosecutorial discretion.” (Loder, supra, 17 Cal.3d at p. 866.) Even where a felony arresteeis not initially charged, information that he is connected to a past crime might inform a prosecutor’s decision to proceed with charges regarding the crime of arrest. If the past crime is an unsolved one involving a forensic DNA sample, the only way to makethat connectionis by obtaining the arrestee’s DNAprofile at booking. | Third, postponement would also present greater logistical difficulties than a system where officials obtain DNA samples along with fingerprints, photographs, and otheridentifying characteristics from all felony arrestees during intake at the jail. (RBOM 52.) Among other things, law enforcement would haveto implement separate procedures for those arrested pursuant to a warrant, for whom a probable cause determination *6 Buzaasserts that there is “no possibility” that an arrestee’s DNA profile will be known bythe time of an arraignment that occurs two to four days after arrest. (ABOM 75.) While that is currently true in many cases, in the future, Rapid DNA technology may provide DNAidentifying information before the time of arraignment in the typical case. (See ante, p. 27.) 38 has already been made by a magistrate, and those arrested based on the probable cause determination ofa policeofficer. Buza argues that the arraignment“servesa vital constitutional function.” (ABOM 73.) That is true, but that function has never been understood to involve deciding whetherofficials may collect identifying information from a person whois already subject to a custodialarrest based on a police determination of probable cause. It is that initial police determination that “reduce[s]” the arrestee’s “expectation of privacy and freedom from police scrutiny,” and justifies bringing the arrestee into custody and collecting his identifying characteristics. (King, supra, 133 S.Ct. at pp. 1978.) Moreover, it remains unclear what constitutional value would be served by postponing the collection of DNA identifying information until after arraignment. Buza and the Court of Appeal both reason, incorrectly, that collecting DNA identifying information at booking| constitutes a “suspicionless search[]” regarding past “criminal conduct unrelated to the crime ofarrest.” (Opn. pp. 27, 38; see ABOM 34.) Butit would not address that concern to wait for the judicial determination made at an arraignment, which focuses only on whether there is probable cause to believe an arrestee committed the crimeofarrest. Buza also expresses concern for the minority of felony arrestees who—unlike him—are never charged, arraigned, or convicted for the crime of arrest. (E.g., ABOM 75-77.) Of course, submitting to a buccal swabis not the only privacy intrusion experienced by such individuals as a consequenceofa valid custodial arrest. Felony arrestees are often handcuffed, transported to jail in a locked squad car, searched, fingerprinted, photographed, and detained. The collection ofDNA identification information as part of the booking process imposes only a modest incremental intrusion on an arrestee’s privacy interests. (See post, p. 41.) Further, felony arrestees who are never charged or convictedare eligible to 39 have their DNA samples destroyed and their identification profiles expunged from the State’s database. (See post, pp. 50-51.)77 Finally, Buza argues that obtaining DNA identifying information prior to arraignment“is an invitation for abuse” and “police overreaching,” suggesting that police will subject citizens to illegal custodial arrests for the purpose of obtaining DNAprofiles. (ABOM 80,82, capitalization omitted.) Speculation that officials will administer a statute improperly is not a properreason for a court to strike down the statute. (See, e.g., Whalen v. Roe (1977) 429 U.S. 589, 601-602.) Noris there any basis for Buza’s speculation. Lawful methods exist by which police may obtain a suspect’s DNAidentification profile: if police have probable cause, they can obtain a warrant; if police lack probable cause, they can obtain a DNA sample from a cigarette butt or soda can discarded by the suspect. (See People v. Gallego (2010) 190 Cal.App.4th 388, 395-396.) Moreover, there is always a substantial check against unlawful police conduct in this area. An arrest that is not supported by probable cause mayviolate the Fourth Amendment and give rise to a claim under 42 U.S.C. § 1983. (See, e.g., Caballero v. City ofConcord (9th Cir. 1992) 956 F.2d 204,206.) *7 Buza arguesthat in approximately 15% of felony arrests, prosecutors decline to file charges, based on his owninterpretation of state data. (ABOM 13.) As the report he cites expressly warns, “[c]aution should be used wheninterpreting this information.” (Cal. DOJ, Crime in California 2014, Table 38A [as of Oct. 13, 2015].) In any event, a prosecutor’s decision not to charge an arrestee does not imply that the police lacked probable cause to make the arrest. (Cf. United States v. Lovasco (1977) 431 U.S. 783, 791 {noting “that prosecutors are under no duty to file charges as soon as probable cause exists”’].) 40 C. The DNA Act Minimizes Any Intrusion on Legitimate Privacy Interests Weighed against the considerable public interests served by collecting and recording DNAidentifying information from arrestees, anyincremental intrusion on arrestees’ legitimate privacy interests is minimal. Arrestees have diminished expectations of privacy in certain important respects, and no privacy interest in their identification. The DNA Act protects arrestees’ privacy interests in their DNA samples, erecting confidentiality protections, restricting the use of samples andthe identification profiles obtained from them, and imposing criminal and civil penalties for violations. Arrestees whoare not ultimately convicted may have their samples destroyed and records of their identification profiles expunged. Under these circumstances, the constitutional balance weighsin favoroftheState. 1. Arrestees have diminished expectations of privacy and no privacy interest in their identity A custodial arrest constitutes “a most extreme interference with the 999 ‘right to be left alone.’” (People v. Crowson, supra, 33 Cal.3d at p. 629 (lead opn. of Kaus, J.).) The legitimate privacy expectations of an individual whois arrested and taken into custody after police determine that there is probable cause to believe he committed a crime “‘necessarily are of a diminished scope.’” (King, supra, 133 S.Ct. at p. 1978, alteration omitted.) Law enforcementofficials may subject an arrestee to a range of restraints and intrusions, including prolonged detention and searches of intimate body parts. (See ibid.; Florence, supra, 132 S.Ct. at pp. 1517- 1519.) In particular, arrestees “in lawful custody cannot claim privacy in their identification.” (Robinson, supra, 47 Cal4th at p. 1121; see Kincade, supra, 379 F.3d at p. 837; Jones v. Murray (4th Cir. 1992) 962 F.2d 302, 306; RBOM 54.) 4] Buza never addressesthis authority, but proposes several different theories for why the privacy expectations of felony arrestees preclude the State from collecting DNA identification information at booking. First, he asserts that “[iJndividuals arrested for lower level non-violent offenses do not require the sameclosepretrial supervision as those charged with violent crimes and accordingly have greater privacy expectations.” (ABOM 87.) But this court has long sanctioned intrusive searches that apply to anyone subject to a custodial arrest, regardless of the crime of arrest. For example, ceepolice may conduct a booking search “‘at the place of incarceration during the period of post-arrest detention,” for purposes that include “promot[ing] jail security.” (E.g., People v. Hamilton (1988) 46 Cal.3d 123, 137.) The “permissible scope of a booking search is broad” and “may even extend to a strip search.’” (/d. at 138, 137; see also People v. Miranda (1987) 44 Cal.3d 57, 81-82.) The court has never suggested, however, that such searches may only be conducted on thosearrested for violent felonies. Second, Buza contendsthat “‘arrestees who are never charged or prosecuted have substantially greater privacy expectations thanpre-trial detainees” who “have been charged by a prosecutor and held over.” (ABOM 77, 79, capitalization omitted.) That statement is inapplicable to Buza, who was charged,arraigned, prosecuted, and convicted of arson and other crimes. (See RBOM4.) It also misses the point. The reasonable expectations of privacy of an individual whois atliberty after being released without charges following an arrest may differ in some respects from those of an arrestee who remains in pre-trial detention after an arraignment. The operative question here, however, concernsthe privacy expectations of an individualat the time of a custodial arrest supported by a police determination of probable cause to believe he committed a felony. At that juncture, an arrestee’s privacy expectations are substantially diminished in importantrespects, and he has no reasonable expectation of 42 privacy with respectto his identification. (Robinson, supra, 47 Cal.4th at p. 1121.)” Third, Buza arguesthat the collection of a DNA sample from an arrestee at booking andthe analysis of that sample to obtain a DNA identification profile is equivalent to an “extendedrestraint ofliberty following arrest.” (ABOM 80,internal quotation marks omitted, quoting Gerstein v. Pugh (1975) 420 U.S. 103, 114.) But the case Buzarelies on provides no support for his argument. It involved “prolonged detention” prior to trial, which “may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.” (/bid.) In light of those considerations, the federal Supreme Court held that the Fourth Amendment requires a judicial determination of probable cause “as a prerequisite to” such prolongedpre-trial detention. (/bid.) In contrast, the physical intrusion resulting from a buccal swab is minimal and swift. (See post, pp. 43-44.) If the arrestee is not charged,or if he is released on bail or his own recognizance,he is free to return to his job and family. The DNA sample obtained at booking andthe identifying information derived from it are subject to protections that safeguard the arrestee’s privacy interests going forward. (See post, pp. 44-46.) 2. The DNAAct, and the State’s implementation of that Act, protect the privacy interests of arrestees Buza makes no complaint about the State’s method of obtaining DNA samples from arrestees, which generally entails a buccal swab of an °® Buzaasserts that “California’s DNA regimenis blindto[the] distinction” between arrestees who are charged and those whoare not. (ABOM 80.) Not so: arrestees who are never convicted or charged are eligible to have their DNA samples destroyed and their information expunged from the State’s databases, provided, of course, that they have no other qualifying offenses. (See post, pp. 50-51.) 43 arrestee’s inner cheek cells. (§ 295, subd. (e).) That “gentle process” involves only “a light touch on the inside of the cheek” (King, supra, 133 S.Ct. at p. 1969), and arrestees typically administer the swab themselves. (See RBOM 54-55.)Instead, Buza focuses onthe State’s analysis of arrestee samples to obtain DNAidentification profiles and the subsequent retention anduse ofthat information. (E.g., ABOM 42.)*° Hearguesthat the DNA Act provides “little protection” for arrestees’ privacy interests. (ABOM 47, capitalization omitted.) Buza is incorrect. The DNA Act contain numerous statutory safeguards designedto protect privacy interests, and the manner in which the State implements the Act provides additional protection. The DNA Act limits the use ofDNA samplesto “identification purposes.” (§ 295.1, subd. (a).) It expressly forbids any use for testing or research into the linkage “between genetics and behavioror health.” (§ 295.2.) The Act also makes the information obtained from DNA samples confidential, including barring the Department from disclosing the information under public disclosure laws. (§ 299.5, subds. (a)-(b).) Only certain designated governmentlaboratories may upload crime-scene profiles and profiles obtained from arrestees and convicted offenders and ~ make comparisons between them (§ 297, subd.(a)), all laboratories that °° Cal. DOJ, Buccal DNA Collection Kit Instructions [as of Oct. 12, 2015]. °° Buzacites a case that referred to the analysis ofDNA samples to obtain a DNA profile as a “second search.” (ABOM 42, quoting Mitchell, supra, 652 F.3d at p. 407.) That case applied essentially the same general balancing analysis that is required under this court’s precedents, including taking into accountthe statutory “safeguards to prevent the improper use of DNAsamples,” and held that the challenged statute was constitutionally reasonable. (Mitchell, supra, at p. 399; see id. at pp. 400-401, 407-408.) 44 process DNA samples must be accredited and must meet federal andstate quality-assurance requirements (§ 297, subd. (d)). Further, as a participant in the Combined DNA Index System (CODIS), California must meetstrict privacy and quality control requirements set by the federal government. (See 42 U.S.C. §§ 14132(c), 14133(c); § 297, subds. (b), (d); King, supra, 133 S.Ct. at p. 1968 [“To participate in CODIS,a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to evaluate compliance with the federal standards for scientifically rigorous DNAtesting.”’]; see generally RBOM 10-11, 60-61.) To ensure compliance with its requirements, the DNA Act imposes criminal and civil penalties for misuse ofDNA samples or information. Anyone who knowingly uses a DNA sample orprofile for anything other than “criminal identification or exclusion purposes”or “the identification of missing persons”is guilty of a crime punishable by up to three years in prison. (§ 299.5, subd. (i)(1)(A).) In addition, anyone who misuses DNA samples or profiles for the purpose of financial gain is subject to a criminal fine (§ 299.5, subd. (i)(1)(B)), and any employee of the Department of Justice who knowingly misuses DNAinformationis liable for civil damages (§ 299.5, subd. (1)(2)(A)). Moreover,the loci that California’s DNA laboratory examinesto generate DNAprofiles have no known association with any physical or medical characteristic, and the resulting profile “is only useful for human identity testing.” (Methodology, supra, at p. 240; see King, supra, 133 S.Ct. at p. 1968; Kincade, supra, 379 F.3d at p. 818; RBOM 8, 60.) DNA identification profiles are stored in the State’s searchable database anonymously, without any reference to the arrestee’s name. The sameis true of the national database operated by the FBI. (See generally Methodology, supra, at p. 240.) Taken together, these “legislative and 45 executive action[s]” serve to “greatly diminish[]” any potential threat to arrestees’ privacy interests. (Loder, supra, 17 Cal.3d at p. 869.) Despite these protections, Buza suggests that the court’s reasonableness balancing should consider the possibility that an arrestee’s DNAsample could “reveal information regarding race, gender, ancestry, familial relationships, sexual orientation, current health, pre-disposition to genetic conditions and diseases (including mental illness and alcoholism), and behavioral traits including a propensity to violence.” (ABOM 41.) He warns as well that the “advance of science” could reveal a “‘purported “crime gene”’” that would “indicat[e] a pre-disposition to criminal behavior.” (Jbid.) Buza’s speculation should not inform the court’s constitutional analysis. The DNA Actflatly prohibits any such use of an arrestee’s DNA sample. (§ 295.1, subd. (a); § 295.2; § 299.5, subd. (i)(1)(A).)' That type of statutory restriction is normally sufficientto allay similar privacy concerns. (See NASA v. Nelson (2011) 562 U.S. 134, 155.) Noris there any evidence of the kind of abuse that Buza posits.” As Buza himself recognizes in a different context, “this Court should not decide” 7! “(Except for a genetic indicator of gender, no markers that code for knownbiologicaltraits are analyzed.” (See Chin et al., Forensic DNA Evidence (The Rutter Group 2014) § 8.19.) Although the State does have a policy authorizing “familial searches” on the separate databaseofprofiles from convicted offenders, that type of search involves only a neutral comparison of identifying markers. (See RBOM 61-62; post, pp. 48-49.) 2 Cf. County ofSan Diego v. Mason (2012) 209 Cal.App.4th 376, 383 (“Mason”) [“There is no evidencein the record to indicate that the County contracted laboratory would intentionally or unintentionally violate Mason’s privacyinterest by sharing or disclosing his DNA information. With no evidenceto the contrary, we follow the maxim ofjurisprudence that the law has been obeyed.”|. 46 this case based on “hypothetical issues [that] are not before the Court.” (ABOM 91, bold emphasis omitted.)*? | Similarly, Buza quotes the Court of Appeal for the statement that “studies have begun to suggest links between CODISloci and susceptibility to certain diseases... .” (ABOM 43, fn.23, quoting opn. pp. 24-25, fn. 9.) In fact, the scientific literature hds found no evidencethat sensitive genetic or medical information can be gleaned from DNAidentification profiles. (RBOM 62-63; see Katsanis et al., Characterization ofthe Standard and Recommended CODIS Markers (Jan. 2013) 58 J. Forensic Sci. $169, $171; Methodology, supra, at pp. 240, 228.) Even if science did permit DNA profiles to be used in that way, the DNA Act would prohibit it. (See ante, pp. 44-45.) Buzacriticizes the State for its “long-term retention of the DNA sample.” (ABOM 42,capitalization omitted.) As the State explained inits opening brief (RBOM 57), retaining DNA samplesis an “important quality control measure”that allows the State to confirm every database hit and ?3 Buzaalso cites two federal Supreme Court decisions for the proposition that the government’s access to sensitive personal information poses a threat to privacy. (See ABOM 45-46.) Those cases involved police searches revealing large amounts ofsensitive personal information that were notsubject to specific statutory protections and userestrictions. In United States v. Jones (2012) ss US. __ [132 S.Ct. 945, 948], the court considered the attachment of a GPS tracking device to an individual’s vehicle, and ongoing use of that device to monitor the vehicle’s movements, which provided “more than 2,000 pages of data over [a] 4- week period.” In Riley v. California (2014) =U.S. [134 S.Ct. 2473, 2489], the court addressed whether, incidentto an arrest, police may search a smart phonethat can potentially hold “millions of pagesoftext, thousandsofpictures, or hundreds of videos.” Here, in contrast, California’s collection ofDNA samples from felony arrestees is subject to robust protections, and the only information obtained by the State is an arrestee’s DNA identification profile. 47 thereby avoid “any kind ofpotential error . . . that could cause a lead to be followed and a warrantto be issued for the wrong person.” (Methodology, supra, at p. 246; see Herkenham, Retention of Offender DNA Samples Necessary to Ensure and Monitor Quality ofForensic DNA Efforts (2006) 34 J. of Law, Medicine & Ethics 380, 381 [describing sample retention as “To|ne of the most important quality practices and protections”].) Buza offers no response. | Buza also challenges the DNA Act’s requirement that arrestee samples must be used “only for identification purposes” (§ 295.1, subd. (a)) arguing that this requirementprovides “little protection,” and could authorize “an assessment of whether that individual’s DNA showsa genetic tendency to criminal behavior.” (ABOM 47,capitalization omitted.) A similar argument has been made andrejected before. (See Alfarov. Terhune (2002) 98 Cal.App.4th 492, 508.) The DNA Act permits a neutral comparison of identifying markers contained in an arrestee’s DNAto determine if they match the corresponding markers in another DNA sample. It does not authorize—indeed, it expressly prohibits—the type of genetic analysis described by Buza. (§ 295.1, subd. (a); § 295.2.)"" Finally, Buza contends that California’s policy authorizing “familial searches” ofDNA identification profiles in the database for convicted offenders “aggravates the privacy consequents of DNA collection.” (ABOM 48, capitalization omitted.) ‘That policyis of little relevanceto this 4 Likewise, the “identification purpose” authorized by section 295.1 cannot reasonably be analogized to police searches of “an arrestee’s cell phone,his tablet, or even his home.” (ABOM 57.) Evenif the phrase ““ [as of Oct. 12, 2015].) That lead definitively excludes the convicted offender as the source of the crime-scene sample. Police must use traditional investigation methodsto pursue the lead further, and may not make anyarrest until they have developed probable causeto link the relative to the unsolved crime. Convicted offenders cannot have a reasonable expectation that their privacy interests would prohibit the State from obtaining and pursuing such a lead.*° *> In a footnote, Buza suggests that the DNA Act may “exacerbate the already racially disproportionate representation in our DNA databases.” (ABOM 81, fn. 47, citation omitted; see also ABOM 49.) If the composition of the arrestee population does not mirrorthat of the general population, the questions or concernsraised by that fact are beyond the issues before the court in the present case. Such concerns provide no constitutional basis for holding that the facially neutral DNA Actis unconstitutional. 49 3. Arrestees who are not convicted may havetheir DNAsamples destroyed and identification profiles expunged As an additional protection, California allows arrestees to have their DNAidentification information expunged and their samples destroyed if no felony charges will be filed against them,their case is dismissed, or they are found not guilty or factually innocent of the charged offense. An arrestee may initiate the expungementprocessin one of two ways. First, he may usethe streamlined process developed by the California Department of Justice, involving a two-page form that is available online.** In the Department’s experience,this process is usually completed within two to four weeks so long as the arrestee provides the required documentation, with the vast majority of requests resulting in expungement. (See FAQs, supra [Getting Expunged or Removed from the CAL-DNA Data Bank, Q1]; RBOM 63-64.) Second, an arrestee may seek a court order requiring expungement. (§ 299, subds. (b), (c).) There is a one-page Judicial Council form, also available online, that allows arrestees to initiate this procedure.”’ Although Buzacriticizes these procedures as unduly cumbersome, they are not.® He suggests that there is no clear way for the arrestees “to even learn of the existence of the expungementprocess.” (ABOM 85.) But a simple internet search, using terms such as “California and DNA”or *° See Cal. DOJ, Streamlined DNA Expungement Application Form [as of Oct. 12, 2015]. °7 See CR-185, Petition for Expungement of DNA Profiles and Samples [as of Oct. 12, 2015]. *8 Of course, as a convictedarsonist, Buza himselfis noteligible for expungement. 50 “DNA and expunge,” will quickly lead any arrestee to the pages on the Department of Justice website describing California’s expungementprocess and providing the required forms. Buza also argues that “|f]ormer arrestees whoare not charged must wait until the statute oflimitations has run... before applying for expungement.” (ABOM 84.) That is not true. Such arrestees may request expungementbefore the statute of limitations has run by submitting a letter from a prosecutorcertifying that no charges will be filed based on thearrest, or a copy of the complaintreflecting that only misdemeanor charges were filed.*’ Buza acknowledgesthat the federal government and the majority of | states that collect DNA from arrestees employ similar procedures, requiring arrestees to initiate the expungementprocess, unlike the automatic- expungementprocedure that Buza champions. (ABOM 83, fn. 49.) He contends that California’s process renders the DNA Act unconstitutional because arrestees have no absolute legal entitlement to expungement; courts retain “the discretion to grant or deny the request” for expungement based on the particular circumstances of a case. (ABOM 84,italics omitted, quoting § 299, subd. (c)(1); see also ibid. [noting that court’s decision is not reviewable by petition or writ].) Buza does not identify any instances where the Department ofJustice and the courts have denied expungement requests even thoughthestatutory criteria for expungement weresatisfied. Although the State doesnotbelieve that the state or federal Constitutions would require expungementin that scenario, that issue could belitigated in a particular case if one ever arose. But the mere possibility ofsuch a case does not make the DNA Act categorically unreasonable. °° See Cal. DOJ, Streamlined DNA Expungement Application Form, p. 2 [as of Oct. 12, 2015]. 51 Buza also suggests that the numberof arrestees who have requested expungementis relevant to the court’s analysis. (See ABOM 85-86.) He faults the State for “offer[ing] no statistics” regarding the number of expungement requests in California. (ABOM 86 & fn. 52, italics omitted.) Andhereferences a 2012 study funded by the National Institute of Justice for the conclusion that “very few people initiate” the expungement process in California and otherstates that require arrestees to initiate expungement. (ABOM 85.) The State does not maintain comprehensivestatistics on requests for expungement, but the Department’s experience so far has been that the numberofrequestsis low relative to the pool of potentially eligible arrestees. The fact that only a small percentage of arrestees have taken advantage of the readily available process for requesting expungement, however, does not establish that the DNA Act is unreasonable. Indeed, it may suggest that many arrestees who (unlike Buza) ultimately were not charged or convicted do not share his stated concern about the maintenance of their DNA identification information in confidential governmentfiles. (See ABOM 86.) Finally, Buza arguesthat“the state has no legitimate governmental interest—zero—in continued retention” ofDNA identifying information from “non-convicted arrestees.” (ABOM88,italics omitted.) That argumentis belied by this court’s decision in Loder, which Buza doesnot discuss or even cite. Loder directly addressed the State’s retention and use of identifying characteristics resulting from “an arrest which did not result in conviction.” (Loder, supra, 17 Cal.3d at p. 862.) As the court recognized, the State hasa “compelling interest” in preserving such records for identification purposesin the future. (/d. at pp. 864.) That is why California generally maintains records of photographs, fingerprints, and other identifying characteristics collected from arrestees, even when the arrest does not result in a conviction. DNA identifying information serves 52 the same purposes. California’s decision to allow arrestees whoare not charged or convicted to request expungementof their DNA samples and identifying information reflects a substantial accommodation for those who prefer to have this information removed from the State’s confidential databases. But the State’s continued retention and use of DNA identifying information from eligible arrestees who make no such request serves compelling interests and is reasonable. * * * Although much of Buza’s answerbrief focuses on differences between the DNA Act and Marylandlaw,his true argument appears to be much broader. He suggests that the DNA Act would violate the California Constitution “[e]ven if California’s DNA regimen were identical to Maryland’s.” (ABOM 39.) In discussing a law enacted by the State Legislature after the filing of Buza’s answer brief—which would revise the DNAActto address certain differences between the California and Marylandstatutes in the event that this court upholds the decision below— Buza argues that there wouldstill be “compelling groundsfor finding a violation of the California Constitution, even with the proposedrevisions.” (ABOM91.)*° At bottom, Buza seemsto believe that any regime authorizing the collection ofDNA from arrestees before they are convicted should be unconstitutional. This court should reject Buza’s invitation to adopt that view under the California Constitution. The minimal burden “° The State agrees with Buza’s position that the referenced statute should not affect the Court’s analysis in this case. (See ABOM 89-91.) Byits terms, the statute will only modify the DNA Act “if the California Supreme Court rules to uphold the California Court of Appeal decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the provisions of Section 298 [and 299] of the Penal Code... .” (Assem. Bill No. 1492 (2015-2016 Reg. Sess.) §§ 3, 5.) 53 imposed by collecting a DNA sample, and then using it to develop a profile that precisely identifies the specific individual arrested, is justified by the fact of a valid custodial arrest based on probable cause to believe the individual has committed a felony. The State’s collection and use ofthis information in the carefully controlled manner authorized by the DNA Act is constitutionally reasonable, in light of the balance between the minimal burden imposed and the important public interests served by the Act. IV. THEDNAACT IS CONSISTENT WITH THE PRIVACY PROTECTIONIN ARTICLE I, SECTION 1 OF THE CALIFORNIA CONSTITUTION Buzaalso contends that the DNA Act violates the privacy clause of the California Constitution. (Cal. Const., art. I, § 1; e.g, ABOM 65, 100; see also ABOM 1 (characterizing the issues presented to include whether the DNA Act violates art. I, § 1). That issue is not before this court. The Court of Appeal did not address whether the DNA Act offends the privacy clause. (Opn. p. 53.) The State’s petition for review did not present that issue, and Buza did notraise it in an answeror a separate petition for review. (See generally Cal. Rules of Court, rule 8.500(a)(2).) Although this court may nonetheless befree to reach the issue (see Cal. Rules of Court, rule 8.516(b)(2)), there is no clear reason forit to do so here. In any event, Buza’s argument lacks merit. First, as the Court of Appeal recognized, “such a privacy claim in the search and seizure context would not offer more protection than a claim underarticle I, section 13.” (Opn.p. 53; see ante, pp. 13-14.) Here, the DNA Actis reasonable under section 13 for the reasons discussed in Parts HI and III above. Because the DNAActsatisfies section 13, the statute does not violate the privacy clause. Second, cases construing the privacy clause establish that the State’s collection of DNA identifying information from arrestees, subject to 54 substantial privacy protections and userestrictions, does not offend article I, section 1. One of this court’s earliest decisions regarding the privacy clause rejected an arrestee’s argument“that official retention and dissemination ofhis arrest record violates his right of privacy (Cal. Const., art. I, § 1).”. Loder, supra, 17 Cal.3d at p. 864.) The court emphasized that the constitutional right of privacy “is not absolute.” (Zbid.) The State has a “compelling” interest in recording and retaining arrest records—typically containing photographs, fingerprints, and “other recorded physical description[s]”—which serve “the promotion of moreefficient law enforcement and criminaljustice.” (Ud. at pp. 864-865.) Any threat to an arrestee’s privacy from the State’s retention and use of such recordsis mitigated by “legislative and executive action” including “criminal penalties for unauthorized dissemination”and other “safeguards against the improper dissemination ofarrest records.” (ld. at pp. 869, 873, 872.) There is no basis for concluding that the privacy clause applies any differently here.”! Even outside the search-and-seizure context, the court has acknowledged that our Constitution permits the collection and use of sensitive information so long as the information is protectedfrom disclosure. Hill addressed the standard governing a private right of action against a nongovernmental entity under the privacy clause. (Hill, supra, 7 Cal.4th at p. 9.) The court observed that “if intrusion is limited and confidential information is carefully shielded from disclosure except to *! Indeed, one ofthe cases that Buzarelies on also supports this conclusion, noting that the privacy interest in DNA information “is not absolute,”and “can be abridged for a compelling opposing interest where laws are in place to limit the use of the DNAto a specific purpose intended to satisfy that interest.” (Mason, supra, 209 Cal.App.4th at p. 381; see ABOM30 [citing Mason].) 55 those who havea legitimate need to know, privacy concernsare assuaged.” (id. at p. 38.) Buza ignoresthis passage, relying on Hill insteadforits general statementthat “[i]nformational privacy is the core value furthered by”article I, section 1. Ud. at p. 35; see ABOM 29.) While that is an accurate quotation, Hill also acknowledgedthat the privacy clause was not intended to forbid the government from collecting sensitive information in service of public interests. As the court noted, the ballot argumentin favor of the privacy clause stated that the clause “will not prevent the government from collecting any information it legitimately needs. It will only prevent misuse ofthis information for unauthorized purposes and preclude the collection of extraneousorfrivolous information.’” (Hill, supra, p. 22, italics omitted.) Collection ofDNA identifying information from adult felony arrestees under the DNA Act advances legitimate and important public interests. (Ante, pp. 24-40; RBOM 39-48.) The Act narrowly limits the use of this information and protects against disclosure or other unauthorized uses. (Ante, pp. 43-49; RBOM 56-63.) That is not the type of conduct the privacy clause forbids. 56 CONCLUSION The judgmentof the Court of Appeal should be reversed. Dated: October 16, 2015 Respectfully submitted, KAMALA D. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Senior Assistant Attorney General STEVEN T. OETTING Deputy Solicitor General ge MICHAEL J. MONGAN Deputy Solicitor General Attorneysfor Respondent CERTIFICATE OF COMPLIANCE I certify that the attached Reply Brief on the Merits uses a 13 point Times New Romanfont and contains 17,061 words. Dated: October 16, 2015 KAMALA D. HARRIS Attorney General of Californiaiag MICHAEL J. MONGAN Deputy Solicitor General _ Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Mark Buza No.: S$223698 I declare: fam employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 16, 2015, I served the attached REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: James Bradley O'Connell, Esq. First District Appellate Project 730 Harrison Street - Suite 201 San Francisco, CA 94107 The Honorable George Gascon District Attorney San Francisco County District Attorney's Office Hall of Justice 850 Bryant Street, Room 325 San Francisco, CA 94103 Jonathan S. Franklin, Esq. Fulbright & Jaworski LLP 801 Pennsylvania Avenue N.W. Washington, DC 20004 Amicus Curiaefor Respondent Kathryn Seligman Staff Attorney First District Appellate Project 730 Harrison Street, Suite 201 San Francisco, CA 94107 Michael T. Risher, Esq. ACLUFoundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Amicus Curiaefor Appellant Joseph R. Grodin University of California Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 Amicus Curiae for Appellant Rachelle Barbour Assistant Federal Defender Federal Defender's Office 801 "I" Street, 3rd Floor Sacramento, CA 95814 County of San Francisco Hall of Justice Superior Court of California 850 Bryant Street San Francisco, CA 94103 First Appellate District Division Two Court of Appeal of the State of California 350 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on October 16, 2015, at San Francisco, California. 4 Elza Moreira Declarant Signature $F2015400268/20738 169.doc