Sunday, February 26, 2012

Case o' The Week: 9th OK with Cali's Cheeky Swab - Haskell and Pre-Conviction DNA

"[W]e must base decisions not on dramatic Hollywood fantasies . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an accessible record." Haskell v. Harris, 2012 WL 589469, *12 (9th Cir. Feb. 23, 2012) (internal quotations and citation omitted).

Fair point by Haskell's author, Judge Milan Smith. Here's the concretely particularized facts:

 ● Political protestor arrested in California;
 ● Forced by cops to give DNA pre-conviction, or be charged with another crime;
 ● Protestor never actually charged with crime for which arrested --  and certainly never convicted of the crime;
 ● DNA nonetheless remains in national database and is used to investigate other crimes;
 ● Will cost the protestor a fortune to try to remove DNA from database, with no right to appointed counsel for task.

     (Maybe reality is more "dramatic" than a "Hollywood fantasy?")

Haskell v. Harris, 2012 WL 589469, *12 (9th Cir. Feb. 23, 2012),  decision available here.

Players: Decision by Judge Milan Smith, persuasive dissent by Judge W. Fletcher.

Facts: A 2004 Amendment to California’s DNA Act allows officers to collect a cheek-swab sample of anyone arrested for a felony offense. Id. at *1. (To emphasize - this sample is taken pre-conviction -- indeed, it is taken before charges are even brought). That DNA is stored in a database and is used to investigate other crimes. Id. at *2. It is a misdemeanor to refuse to give the sample. Id. at *2.

The Haskell civil plaintiffs were charged with felonies and were forced to give DNA samples. They were never convicted of the felonies for which they were arrested. Id. at *2. Three of the plaintiffs were political protestors who were never charged with any crime, or who had their charge dismissed. Id. at *16 -*17 (Fletcher W., J.,  dissenting).

Hon. Milan Smith
Plaintiffs brought a § 1983 class action alleging a violation of the Fourth Amendment and seeking a preliminary injunction. Id. at *2. The district court found no Fourth Amendment violation. Id. at *3.

Issue(s): “The constitutionality of California’s requirement that all felony arrestees provide DNA samples is a question of first impression for us.” Id. at *5.

“[We ask] whether California’s mandatory DNA collection requirement . . .  as applied to felony arrestees who have not been convicted, violates the Fourth Amendment.” Id. at *3.

“The question before us is whether California’s DNA collection requirement . . . is an unreasonable search. In line with the Constitution’s plain text, the touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. . . We apply the ‘totality of the circumstances’ balancing test to determine whether a warrantless search is reasonable. Under the totality of the circumstances test, whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at *4.

Held: “We assess the constitutionality of the 2004 Amendment by considering the ‘totality of the circumstances,’ balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.” Id. at *1 (internal quotations and citations omitted).   

Of Note: In a compelling dissent Judge Fletcher tackles and rebuts each of Judge Smith’s arguments. Id. at *16 (Fletcher, W., J., dissenting). For Judge Fletcher (and for us), the Ninth’s 2009 Friedman case controls: he wonders how Haskell is possible without taking Friedman en banc. Id. at *20.

Hon.  William Fletcher
Judge Fletcher also makes a persuasive distinction between pre-conviction DNA taken for identification (constitutional), versus pre-conviction DNA taken for investigation (verboten). Id. at *22. California pre-conviction DNA, the dissent emphasizes, is plainly used for investigation. Id. at *24.

A case that cries out for en banc review.
How to Use: “Special needs?” D.O.A. Id. at *4. Judge Smith summarily rejects the Fourth Amendment’s “special needs” doctrine in a brief paragraph, and the dissent doesn’t complain – Samson’s “totality” is ascendent. Worth a read re: special needs.
For Further Reading: How spooky is DNA? In one case, a DNA sample from an incarcerated son lead to a “familial” match, and then to the father’s arrest for old offenses. See article here.

   But don’t worry: pre-conviction DNA isn’t used for familial searching (well, at least it is not used - quite - yet). See Haskell, id. at *19 (Fletcher, W., J., dissenting).

Image of "Gattaca" from
Imange of the Honorable Milan Smith from
Image of the Honorable William Fletcher from

 Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at



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