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9th Cir Grants En Banc Rehearing in DNA Sample Case

By Robyn Hagan Cain on July 27, 2012 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals has agreed to re-examine a California policy that requires cops to collect DNA from felony suspects, regardless of whether they are convicted, reports the Los Angeles Times.

An 11-judge panel will consider the case, Haskell v. Harris, en banc.

In February, the Ninth Circuit Court of Appeals upheld a provision of California's DNA and Forensic Identification Data Base and Data Bank Act (DNA Act), requiring law enforcement officers to collect DNA samples from all adults arrested for felonies.

The DNA Act requires officers to collect a DNA sample from a swab of the arrestee's mouth after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. The DNA samples are stored in the state's DNA database, which contains 1.9 million profiles. Arrestees who are not charged with a felony can apply to have their samples expunged from the database.

California law enforcers have identified more than 10,000 offenders by using their DNA, according to The Wall Street Journal.

Balancing the arrestees' privacy interests against the government's need for the DNA samples, the Ninth Circuit ruled that the DNA Act does not violate the Fourth Amendment because the Government's compelling interests outweigh arrestees' privacy concerns. The majority compared sampling under the DNA Act to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection.

In a dissenting opinion, Judge William Fletcher argued that the DNA samples were used for investigative purposes, and should not be collected without a warrant or reasonable suspicion. He also observed that the expungement process for suspects not charged with felonies is a "lengthy, uncertain, and expensive" process.

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