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Fed Court Upholds Calif. Law That People Arrested for Felonies Must Give DNA

"...making DNA collection substantially similar to fingerprinting..."

SAN FRANCISCO (TheBlaze/AP) -- Arrested on a felony charge in California? Be prepared to open wide and let them take a swab of your cheek. A divided federal appeals court ruled Thursday that California law enforcement officials can keep collecting DNA samples from people arrested for felonies.

(Related: California court rules arrestees' DNA collection unconstitutional)

The 9th U.S. Circuit Court of Appeals said law enforcement's interest in solving cold cases, identifying crime suspects and even exonerating the wrongly accused outweigh any privacy concerns raised by the forced DNA collections.

The 2-1 ruling came in response to a lawsuit filed by four Californians who were arrested on felony charges but never convicted.

The arrestees sought a court order barring collection of DNA from people who are arrested but not convicted, arguing the process is an unconstitutional search and seizure since some suspects will later be exonerated.

The DNA samples are obtained with a swab of the cheek and stored in the state's DNA database, which contains 1.9 million profiles. Arrestees who are never charged with a felony can apply to have their samples expunged from the database.

The state Department of Justice said it has had roughly 20,000 "hits" connecting suspects with previous crimes since it began collecting the DNA profiles.

Judge Mylan Smith Jr., writing for the two-judge majority, said the useful law enforcement tool wasn't any more intrusive than fingerprinting.

"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," wrote Smith, who also said investigators are prohibited by law from misusing the database.

Judge William Fletcher dissented, writing that fingerprinting a suspect is done exclusively for identification purposes. The DNA samples, he wrote, "are taken solely for an investigative purpose, without a warrant or reasonable suspicion."

Fletcher noted that one-third of the 300,000 people arrested in the state for felonies each year are never charged with felonies. He said the state's offer to remove those samples from the database for those who apply is onerous.

"Expungement is a lengthy, uncertain and expensive process, Fletcher said. "Arrestees seeking expungement must pay their own expenses and attorney's fees."

Wired reports that 21 other states have laws taking DNA from those arrested on a felony charge

Fletcher said he believed the privacy rights of arrestees never charged with felonies should trump law enforcement's need to collect to the DNA. Wired has more from Fletcher's dissent:

I would conclude that Proposition 69 is unconstitutional. My reasoning is straightforward. Fingerprints may be taken from an arrestee in order to identify him — that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody. DNA samples are not taken from felony arrestees under Proposition 69 in order to identify them. Rather, they are taken solely for an investigative purpose, without a warrant or reasonable suspicion.

The same issue is also making its way through the state court system. A Court of Appeal decision striking down the collection as unconstitutional was put on hold when the California Supreme Court agreed to hear the case.

In 2004, voters helped pass Proposition 69 and full implementation of the law began in 2009.

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