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En Banc Rehearing Reveals Skepticism of DNA Database

By Robyn Hagan Cain on September 20, 2012 | Last updated on March 21, 2019

California's DNA and Forensic Identification Data Base and Data Bank Act (DNA Act) may not be long for this world. Not in its current form, at least.

Wednesday, a majority of the Ninth Circuit en banc panel that heard the DNA Act appeal expressed concern that the DNA is taken from people regardless of whether they are later charged or convicted of a crime, reports the San Jose Mercury News.

But will that skepticism manifest a reversal?

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. Arrestees who are not charged with a felony can apply to have their samples expunged.

In February, the Ninth Circuit Court of Appeals upheld a provision of California's DNA Act that requires law enforcement officers to collect DNA samples from all adults arrested for felonies.

Balancing the arrestees' privacy interests against the government's need for the DNA samples, a Ninth Circuit panel concluded that the DNA Act does not violate the Fourth Amendment because the government's compelling interests outweigh arrestees' privacy concerns.

Ninth Circuit Judge Milan Smith, Jr. and Senior District Judge James Dale Todd 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.

During yesterday's hearing, the panel questioned the timing of the DNA sample. Judge Randy Smith, insisted there was no reason to permit DNA collection at the point of arrest, the Mercury News reports. "I don't see what the government loses by putting it off until conviction, or until a judge looks at it ... or at least the prosecutor looks at it, rather than just the police look at it," Judge Smith told Deputy Attorney General Daniel Powell.

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