A ‘reasonable’ cheek swab

Rebecca@sfbg.com

On June 3, the U.S. Supreme Court ruled that it’s legal for law enforcement to collect DNA samples from people who are arrested — even when the individuals taken into custody are never convicted of a crime. The justices were narrowly split, and the decision immediately drew criticism from civil liberties advocates like American Civil Liberties Union, who characterized it as a blow to American’s Fourth Amendment right to privacy.

Does the historic ruling carry implications for law enforcement practices in California? Not exactly. As it turns out, current state law allows police to collect DNA samples through cheek swabbing on a far more routine basis than in Maryland, where only a handful of serious offenses can trigger this kind of search. And in the Golden State, fewer protections are in place for arrestees.

The Supreme Court issued its ruling with a narrow 5-4 vote. “The majority’s take was that cheek-swabbing is reasonable … even without any suspicion of wrongdoing by the arrestee, because the intrusion is minimal, the arrestee has less of an expectation of privacy than a typical citizen, and the state has a strong interest in using DNA to identify people,” explained Andrea Roth, a law professor at the University of California at Berkeley and founding member of a group that studied and litigated forensic DNA typing.

In contrast, Roth said, conservative Justice Antonin Scalia “was concerned that this is the first time that we’ve ever allowed searches of someone’s body, without any type of individualized suspicion, for the purpose of general crime-solving. He thought that was a line the Constitution draws in the sand, and that the law is on the wrong side of that line.”

Despite drawing a scathing critique from a conservative Supreme Court justice, Maryland’s system for the collection and use of DNA is actually much narrower in scope than the law that went into effect in California in 2004, when Proposition 69 passed.

Maryland’s law “only applies to a limited number of offenses, it doesn’t apply at all to people who are simply arrested but not charged, and they can only make use of the sample after there’s been a judicial finding of probable cause,” Michael Risher, a lawyer with the Northern California Chapter of the American Civil Liberties Union, told us.

“California doesn’t have any of those safeguards,” Risher added. “It’s a different law.”

2.1 MILLION SAMPLES

When Prop. 69 was approved, California voters initially sanctioned DNA collection from people convicted of felony offenses. But on January 1, 2009, a different provision of that initiative kicked in, expanding it to allow police to collect DNA samples from “any adult person” arrested for “any felony offense,” regardless of whether that person is ever charged or convicted of a crime.

When used as a form of identification, DNA samples are processed to yield a 26-number sequence that aids law enforcement in verifying suspects’ identities.

Once they’re collected and used to produce unique identifiers, those cotton-swabbed samples aren’t destroyed; instead, they remain in the hands of a state agency. “The problem is that the state keeps your samples,” Roth said. “It’s not like they develop the 26-number profile and then throw the rest of the sample in the trash. So if you’re in a database, state officials still have your entire DNA strand.”

According to the California Department of Justice, since the start of the program, the DNA data bank had received and logged more than 2.1 million samples as of March 31. The data bank is shared with the National DNA Index System (NDIS), part of the Combined DNA Index System (CODIS), which is linked to federal records.

In its decision, the nation’s highest court determined that “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure.”

Yet civil liberties advocates point out that the information contained in a DNA sample can reveal much more about an individual than either a fingerprint or a unique identifier generated from a sample.

“There’s a basic difference between your DNA and your fingerprint,” Risher explains. “Your fingerprint doesn’t tell you anything about yourself. And your DNA is your genetic blueprint. The profile that they generate might not say a lot about you … but they are keeping these physical samples. Current law says they can’t be tested for sensitive things, but laws change, and people can violate them.”

And a properly preserved DNA sample can last hundreds of thousands of years — essentially forever.

ANTI-WAR PROTESTER ASKED FOR DNA

Lily Haskell has been fighting the state of California over DNA collection ever since her arrest in March of 2009, at an anti-war demonstration in downtown San Francisco. Held to commemorate the anniversary of the start of the Iraq war, the protest was staged in Civic Center Plaza. “With no prior warning, police charged the crowd, penned us in, arrested us, and charged us with trying to incite a riot,” she told us.

But hours later, after she and a handful of others had been processed at the San Francisco County Jail, Haskell was summoned from her holding cell and presented with what struck her as an odd request. Although she says she had already been fingerprinted, and her identity already confirmed, an officer “told me I had to provide a DNA sample.”

Her first instinct was to decline. “I didn’t believe it was just to have to comply with that,” she said. “I told them I believed it was my right to refuse.” Haskell was told that if she continued to resist the sample collection, she’d be charged with a misdemeanor and would likely spend a few additional nights in jail. So she relented.

Although she was neither charged with a crime nor tried for a felony or any other offense after being released from jail 24 hours later, Haskell’s DNA sample remains in the state databank. Now she’s a lead plaintiff in a class action lawsuit filed by the ACLU.

Haskell said she’s never tried to get her DNA expunged from the state database, because she sees her participation in the lawsuit as an important challenge to a law she views as unjust. “I don’t want my DNA to be held,” Haskell says, “and I don’t want anybody else’s DNA to be held, either.”

Individuals who have tried to go the route of having DNA samples removed have found it can be tedious. “In California, the process of getting your DNA out of a database if your case ends in dismissal or acquittal is an onerous one,” Roth explained. “You have to pay your own filing and attorney fees, you have to wait until the statute of limitations has run, the judge has complete discretion to deny your motion, and you can’t appeal the judge’s decision.”

Legal upshot still unclear

Meanwhile, ACLU attorneys in Northern California were closely watching the Supreme Court case, Maryland v. King, to see how it might affect their class-action challenge to Prop. 69, a case known as Haskell v. Harris. Although a divided panel of Ninth Circuit judges upheld the law in February of 2012, the court took the unusual step last July of voting to rehear the case en banc, with a nine-judge panel. However, the court issued an order after oral arguments saying it wouldn’t issue a ruling until King had been decided in the Supreme Court.

“Yes, they will have to do something with our case — but what they do is actually up to them,” Risher explained. “There’s no binding opinion in our case right now. Everything was up in the air waiting for King to be decided.”

Risher added that in future arguments, the ACLU plans to highlight the differences between Maryland’s DNA collection law and California’s far broader Prop. 69. “If King was a 5-4 decision with a law that was so narrowly focused, with those safeguards,” he said, “well okay — this one crosses the line.”