California appelate court bans collection of DNA from arrestees

LOS ANGELES – District Attorney Steve Cooley announced in an August 15, 2011 press release that he has urged the California Attorney General to seek state Supreme Court review of this month’s appellate ruling prohibiting collecting DNA samples from arrestees.

The ruling from the 1st District Court of Appeal in San Francisco in California v. Buza took issue with the constitutionality of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, that requires a DNA sample to be taken from all adults arrested for or charged with any felony offense. An amendment to that act, approved by California voters in November 2004 (Proposition 69) and effective January 1, 2009, requires the collection of DNA samples from any adult arrested for or charged with any felony. The law also provided that if the arrestee was not charged with a criminal offense or acquitted, he or she could have the sample expunged from the database.

The court wrote in its decision: "Appellant claims that the seizure of his DNA at a time when he was entitled to the presumption of innocence, and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his Fourth Amendment right to be free from unreasonable searches and seizures. We agree, and therefore reverse the judgment."

The court also stated: "There is no doubt that nonconsensual extractions of substances that may be used for DNA profiling are 'searches' entitled to the protection of the Fourth Amendment."

Calling the state Court of Appeal decision “result-oriented,” Cooley said in a letter to Attorney General Kamala D. Harris that the ruling “cries out for an objective and well reasoned analysis by the High Court.”

Since the enactment of Proposition 69, Cooley noted, a number of cold cases statewide have been reinvestigated, resulting in numerous filings in Los Angeles County including:

  • Lonnie Franklin Jr., the Grim Sleeper murder defendant accused of killing 10 women over a 20-year span, pending trial.
  • Stephanie Lazarus, former LAPD officer accused of the 1986 murder of former boyfriend’s new wife, pending trial.
  • Dennis Vasquez, charged with the rape and murder of an 80-year-old woman in 1975, pending trial.
  • Sylvester Gene Rawls, charged with sexually assaulting a 17-year-old girl at knifepoint in 2003, pending trial.
  • Justice Anthony Kline, who wrote the decision, went out of his way to condemn police, insinuating that they use the law to arrest people falsely to illegally obtain evidence,” the District Attorney said. “Nothing could be further from the truth.”

Cooley highlighted the current safeguards for those acquitted or not charged. Pointing to the case of Grim Sleeper defendant Franklin, the District Attorney noted that police do not have to make an arrest to legally recover DNA from a suspect.

After Franklin was listed as a person of interest following a familial DNA match from the database, detectives obtained his DNA evidence from a piece of pizza that he ate and discarded at a restaurant.

“This ruling does a disservice to the victims and survivors of crimes including rape and murder,” Cooley said. “The current law is just and contains adequate safeguards to prevent abuse of an individual’s rights.

“Like long-accepted conventional fingerprint evidence, use of DNA is a valuable law enforcement tool. To suggest that it is used as a ploy to violate a person’s constitutional rights is not only wrong, it is insulting to the entire criminal justice system,” the District Attorney said.

Click here to read the full ruling.

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