On December 4, the ACLU, representing the plaintiffs in Haskell v. Brown with co-counsel from Paul Hastings, argued for a preliminary injunction to stop the government from warrantless and suspicionless collection of DNA from people who have been arrested for a felony.  Before 2009, California only collected DNA from people who had been convicted.  Starting last year, it began collecting DNA from people after arrest, pursuant to a law enacted in 2004 by Proposition 69.

The ACLU argued that the statute violates the Fourth Amendment guarantees of privacy and freedom from unreasonable search and seizure.  They point out that these suspicionless, warrantless searches, are distinct from DNA testing programs for persons convicted of felonies, because people who are merely arrested are legally presumed innocent.  The law requires DNA collection, not just from persons arrested for violent crimes, but also for non-violent felonies, like writing a bad check.  For example, one of the plaintiffs in this case was arrested at a protest against the Iraq War when she allegedly tried to free another protester who was being arrested.  Many of those arrested will never be convicted.  According to the plaintiffs’ complaint, about one-third of the people arrested for a felony in 2007 were never convicted of any crime, meaning 101,000 people who were convicted of nothing would be included in the DNA database.

This issue, whether collecting DNA from arrestees violates the Fourth Amendment, has been decided by at least four other courts.  The Virginia Supreme Court upheld the testing (Anderson v. Commonwealth).  But it was found unconstitutional in the Minnesota Court of Appeals (In re Welfare of C.T.L), a federal trial court in Nebraska (United States v. Purdy), and a federal trial court in Pennsylvania (United States v. Mitchell). This case, Haskell v. Brown, challenges the practice in California. The arguments and questions at the Haskell v. Brown preliminary injunction hearing focused on what information would be revealed through the DNA testing and how that information would be used.

The California Attorney General’s office argued that because an arrested person has no reasonable expectation of privacy in their identity, DNA can be taken to identify the person, similar to fingerprinting. Upon arrest, a person’s DNA is collected, and a profile is created from a limited set of DNA markers (CODIS markers) that are sufficiently unique to the individual. The state argued even an arrest changes a person’s expectation of privacy in their DNA when used for identification.  The ACLU countered that the DNA sample is not, in fact, being used for identification.  The DNA sample is processed only after the person has been identified through fingerprinting.  At that point, their identity is no longer in question; the DNA profile is, at best, cumulative evidence of identity, and the state’s interest in identification is less compelling.

The ACLU argued that, in assessing the intrusion to the person’s privacy interest, the court could not limit its analysis only to the state’s professed use to establish identity. Rather the court should consider how the individual’s privacy interest will be affected by other, law enforcement uses made of that DNA.  When DNA is found at a crime scene, it can be compared to the profiles in the database, and the police can determine whose DNA was left at (and presumably who was at) the crime scene.  Also, by lowering the threshold on the database search, the police can (and have begun to) determine whether a person in the database is related to a person at the crime scene.  The state claims that arrestee DNA testing will prevent future crimes, but the ACLU argued that it adds no significant benefit to the investigative process beyond what can already be accomplished by testing convicted persons. The ACLU also pointed out that using the DNA in this way reveals more information about a person than their identity; it reveals where a person has been and to whom she is related.  One could argue that if DNA can legally be tested to establish identity, than the government-generated DNA profile is not private and can be put to reasonable use.  It would be troubling, however, for the court to permit the search without considering how the individual’s privacy will be affected by other known uses of the DNA profile.

The parties also disagreed about what information in the DNA should be considered when assessing the individual’s privacy interests. The CODIS markers in the DNA profile (currently) do not indicate genetic predispositions.  The state analogized the profile to a fingerprint in the amount of information it reveals and how it will be used.  The ACLU, however, argued that because DNA can be analyzed to reveal a large body of personal, private information, including disease risk and certain behavioral characteristics, DNA collection is a much more serious intrusion into the individual’s privacy than a fingerprint.  And practically, there is little opportunity for a person to learn of and challenge subsequent analysis of her DNA.  In line with the ACLU’s argument, in US v. Mitchell, when assessing the degree to which DNA testing intrudes on the individual’s privacy, the judge considered “the significant need to protect the complex and comprehensive information contained in a DNA specimen,” not solely the information included in the DNA profile.

Whether collecting DNA from persons after arrest is a reasonable search depends on how the court evaluates the state’s purpose and interests and the degree of intrusion to the individual’s privacy.  Is this case analogous to collecting fingerprints upon arrest for identification and cataloging them?  Or is the state using identification as an excuse to search a large volume of sensitive, private information in the hopes of implicating the person in other crimes?

– Kelly Lowenberg