SAN FRANCISCO (CBS SF/AP) — A California law that required an arson suspect to provide a sample of DNA when he was booked into jail did not violate his privacy, the California Supreme Court said Monday.
The 4-3 ruling upheld the collection of DNA from Mark Buza, saying authorities had probable cause to arrest him for a serious crime. But the decision left open the possibility of other legal challenges to the DNA law.
“The court was looking very narrowly at the case before it and was careful to avoid answering questions that were not specifically raised by Mr. Buza’s situation,” said Michael Risher, senior staff attorney at the ACLU Foundation of Northern California, which filed a brief on behalf of Buza in the case.
Buza was suspected of setting a police car on fire in San Francisco but refused to provide a DNA sample after his arrest. He was later convicted of arson and refusal to provide a DNA specimen.
A law voters approved in 2004 requires all adults arrested on suspicion of a felony to provide a cheek swab immediately following arrest or during booking. The DNA sample is sent to a state lab for analysis.
Critics say the law violates people’s privacy by giving law enforcement access to their genetic material even before they are charged or convicted.
Supporters say privacy concerns are outweighed by law enforcement’s interest in testing DNA to solve cold cases, identify crime suspects and exonerate the wrongly accused.
Law enforcement can continue to collect DNA from felony suspects under Monday’s decision, said Jayann Sepich, the founder of DNA Saves, a group that pushes for state laws to expand DNA databases and filed a brief in Buza’s case.
More than half of all states allow for DNA collection when a suspect is arrested or charged.
“I’m jubilant for victims, I’m jubilant for people who won’t become victims because we know that taking DNA at the time of felony arrests actually prevents future crime,” said Sepich, whose daughter was raped and murdered in New Mexico in 2003.
A 2013 U.S. Supreme Court ruling upheld a similar Maryland DNA collection law.
But a California appeals court said in 2014 the U.S. Supreme Court decision did not apply in Buza’s case in part because of significant differences between Maryland’s law and California’s law.
Maryland’s law, for example, only allows the DNA of suspects to be tested after they have been charged with a crime. California’s law allows testing even before charges are filed.
The California law also applies to all felony suspects who are arrested regardless of the seriousness of the alleged crime and does not call for the automatic destruction of the DNA sample if the person is cleared.
California’s 1st District Court of Appeal said in its 3-0 decision in 2014 that the state Constitution’s ban on unreasonable search and seizure prohibited collecting DNA by cheek swab without “independent suspicion, a warrant or even a judicial or grand jury determination of probable cause.”
The California Supreme Court said Monday that Buza’s crime was serious, and he never contested that there was probable cause for his arrest.
But Associate Justice Leondra Kruger, writing for the majority, said the DNA collection law “may raise additional constitutional questions that will require resolution in other cases.”
J. Bradley O’Connell, an attorney for Buza, said the court left open the possibility of lawsuits from people who successfully challenge the basis for their arrests and people who are arrested on suspicion of felonies that are not considered serious.
“In the meantime what that means is that the current regiment is going to remain on the books,” he said.
In a dissenting opinion, Associate Justice Goodwin Liu called the DNA collection a “biological dragnet” and said requiring DNA from people who are not even found to be lawfully detained was not a far step from collecting and retaining the DNA of even law abiding citizens.
Rape survivor Ashley Spence has been following the case very closely. In 2003, she was about to start her sophomore year at Arizona State University.
“In the middle of the night, I was asleep, and someone had intruded [into] my apartment without me knowing,” remembered Spence. “My face was covered the entire time. I was awoken to someone raping and assaulting me.”
In 2010, Kevin Lee Francois was arrested in California. His DNA matched Spence’s case. In 2015, he was sentenced to 138 years in prison.
“I know that, without that law, my attacker would most likely be out there still, harming other people and women,” said Spence.
Jennifer Lynch is a senior staff attorney at the Electronic Frontier Foundation. She says taking the DNA of anyone arrested for a felony can be unfair, such as in domestic violence cases.
“Law enforcement officers come into a domestic violence situation and they can’t tell who is responsible — who is the person being violent — and so they just arrest both parties,” said Lynch. “And that would mean that people who are the victims of crime, they have their DNA put into the state’s arrestee database as well.”
Lynch says the biggest problem with the current system is that it does not automatically delete the information of people who are not convicted.
“So that means that the nearly one third of arrestees who are never found guilty of any crime, their DNA remains in the state database,” said Lynch. “It’s very difficult to get that DNA taken out of the state database.
Now that the case is over, the foundation is looking to change the law, so DNA would automatically be deleted if a person is not convicted of a felony
“The legislature has already looked into changing the law, so I think that’s something that we’ll push going forward,” said Lynch.
© Copyright 2018 CBS Broadcasting Inc. All Rights Reserved. The Associated Press contributed to this report.