By Bob Egelko
The state Supreme Court left intact a voter-approved California law Monday that requires police to collect DNA samples from anyone arrested on suspicion of committing a felony, sidestepping questions about what it means for the tens of thousands of people who are arrested but never charged or convicted.
In a 4-3 ruling, the court said the law did not violate the privacy rights of a San Francisco man who was arrested in 2009 for setting fire to a police car, and then was also charged for refusing to let officers swab his cheek for DNA.
The demand for genetic material was "justified by an interest in accurate identification," Justice Leondra Kruger said in the majority opinion. While the court is "mindful of the heightened privacy interests in the sensitive information that can be extracted from a person's DNA," Kruger said, the law provides protection by making it a felony to misuse DNA samples.
Because the defendant, Mark Buza, later pleaded guilty to arson, Kruger said, there was no need for the court to rule on the law's application to defendants who are acquitted or never charged with a felony -- about one-third of the 200,000-plus people arrested for felony crimes in California each year, according to state records. Buza was sentenced to 16 months in prison, and concurrently served six months for refusing the DNA sample.
The law says non-convicts can get their DNA removed from the records. But defense lawyers and civil liberties advocates say the procedures for removal are cumbersome and unreliable.
Dissenting Justice Mariano-Florentino Cuéllar said the law is "a major intrusion into the privacy of all the people subject to its procedures," even those later convicted of felonies. Police can use fingerprints to identify suspects and are mainly using DNA to try to link a defendant to other crimes, a type of search that usually requires a warrant, Cuéllar said.
The law, Proposition 69, was approved by 62 percent of the voters in 2004 and took effect in 2009. A previous state law had allowed DNA searches of convicted felons, and of suspects with felony records, but Prop. 69 required the searches of anyone arrested for a felony. The DNA samples are forwarded to a national database accessible to the FBI as well as state and local police.
The federal government and about half the states have laws allowing DNA collection from some or all of those taken into custody. Supporters say the laws are minimally intrusive and give police a powerful resource to solve cold cases.
"Without this law, my attacker might still be out there harming others," Ashley Spence, an advocate of the law, said Monday. Her Southern California rape case in 2003 went unsolved until officers in 2010 matched evidence from the crime with DNA in the database. The suspect was later convicted.
A state appeals court in San Francisco ruled Prop. 69 unconstitutional in 2011, saying it allowed police to conduct intrusive searches aimed at uncovering evidence of past crimes, without needing any evidence of guilt.
In overturning that ruling Monday, the state's high court cited a 2013 U.S. Supreme Court ruling upholding a Maryland law that required DNA samples from anyone charged with a serious felony.
The California law is broader -- it applies to all felonies, and requires DNA collection before a suspect has been charged in court -- but Kruger said Buza's arson crime was serious and his rights were not violated by the DNA collection.
Another difference between the two laws is that Maryland automatically removes DNA samples from the database if a defendant is acquitted or is not prosecuted, while California requires the defendant to ask a judge to order removal of the sample. Defense lawyers said they hope to challenge that provision of the law in future cases.
The case is People vs. Buza, S223698.
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