Haskell v. Harris

Decision Date23 February 2012
Docket NumberNo. 10–15152.,10–15152.
Citation669 F.3d 1049,2012 Daily Journal D.A.R. 2462,12 Cal. Daily Op. Serv. 2163
PartiesElizabeth Aida HASKELL; Reginald Ento; Jeffrey Patrick Lyons, Jr.; Aakash Desai, on behalf of themselves and others similarly situated, Plaintiffs–Appellants, v. Kamala D. HARRIS,* Attorney General of California; Eva Steinberger, Assistant Bureau Chief for DNA Programs, California Department of Justice, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Michael T. Risher (argued), American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, CA, and Peter C. Meier and Eric A. Long, Paul Hastings LLP, San Francisco, CA, for the plaintiffs-appellants.

Daniel J. Powell, Deputy Attorney General (argued), Kamala D. Harris, Attorney General of California, James M. Humes, Chief Deputy Attorney General, Jonathan K. Renner, Senior Assistant Attorney General, Constance L. LeLouis, Supervising Deputy Attorney General, and Enid A. Camps, Deputy Attorney General, San Francisco, CA, for the defendants-appellees.

Daniel J. Broderick, Federal Defender, David Porter, Assistant Federal Defender, Rachelle Barbour, Research and Writing Attorney, Sacramento, CA, and John T. Philipsborn, San Francisco, CA, for amici curiae Federal Defender of the Eastern and Southern Districts of California, California Attorneys for Criminal Justice, and the National Association of Criminal Defense Lawyers.Jonathan S. Franklin, Tillman J. Breckenridge, and Mark T. Emery, Fulbright & Jaworski L.L.P., Washington, D.C., for amicus curiae DNA Saves.Anne Marie Schubert, Albert C. Locher, Jan Scully, and W. Scott Thorpe, Sacramento, CA, for amicus curiae California District Attorneys Association.Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. 3:09–cv–04779–CRB.Before: WILLIAM A. FLETCHER and MILAN D. SMITH, JR., Circuit Judges, and JAMES DALE TODD, Senior District Judge.**Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge WILLIAM A. FLETCHER.

OPINION

M. SMITH, Circuit Judge:

PlaintiffsAppellants Elizabeth Aida Haskell, Reginald Ento, Jeffrey Patrick Lyons, Jr., and Aakash Desai (collectively, Plaintiffs) appeal the district court's denial of their motion for a preliminary injunction to stop the enforcement of the 2004 Amendment, infra, to California's DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act), Cal.Penal Code § 296(a)(2)(C), which amendment requires law enforcement officers to collect DNA samples from all adults arrested for felonies. They contend that the 2004 Amendment violates their Fourth Amendment right to be free of unreasonable searches and seizures.

We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees' privacy interests against the Government's need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee's mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. 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. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government's compelling interests far outweigh arrestees' privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.

BACKGROUND

In 1998, the California legislature enacted the DNA Act, Cal. Stat. Ch. 696, § 2, which requires DNA testing of individuals convicted of certain offenses. The DNA Act is intended to aid local, state, and federal law enforcement agencies “in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.” Cal.Penal Code § 295(c).

Law enforcement use of California's DNA database has proven remarkably effective. Since 1998, California law enforcement officials have identified more than 10,000 offenders by using their DNA. To build on the positive results achieved through the implementation of the DNA Act, in 2004, California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (the 2004 Amendment), which expanded the DNA Act's testing requirement to include “any adult person arrested or charged with any felony offense ... immediately following arrest, or during the booking ... process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody.” Cal.Penal Code §§ 296(a)(2)(C); 296.1(a)(1)(A). Proposition 69 cited the “critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime.”

The 2004 Amendment became effective on January 1, 2009. Officers usually collect the DNA sample from a buccal swab that is gently swept along an arrestee's inner cheek. An arrestee's failure to cooperate with the collection is a misdemeanor. Cal.Penal Code § 298.1(a).

Once officers collect the DNA sample, it is sent to a State laboratory, which creates a DNA profile of the arrestee. The laboratory creates a profile only for identification purposes by analyzing thirteen genetic markers known as “junk DNA,” which are not linked to any known genetic traits. The laboratory uses “short tandem repeat” technology (STR), which is the repeated sequence of base pairs at each of the thirteen markers. The variation in the number of sequences at each marker creates a unique profile that law enforcement uses for identification. “One person might have two copies of the first marker that are four and eight repeats long, copies of the second that are eleven and twenty-three copies long, copies of the third that are three and ten copies long, and so on through all thirteen markers.” United States v. Mitchell, 652 F.3d 387, 401 (3d Cir.2011) (en banc) (quoting Henry T. Greely et al., Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin, 34 J.L. Med. & Ethics 248, 250 (2006)). The odds that two people share identical sequences on all thirteen markers are “one in several hundred billion.” Id.

The State laboratory then uploads the DNA profile into the Combined DNA Index System (CODIS), a nationwide collection of federal, state, and local DNA profiles. “Beyond the STR-generated DNA profile, CODIS records contain only an identifier for the agency that provided the DNA sample, a specimen identification number, and the name of the personnel associated with the analysis.” United States v. Kincade, 379 F.3d 813, 819 n. 8 (9th Cir.2004) (en banc) (citing H.R.Rep. No. 106–900(I), at *27 (2000)).

When an arrestee's DNA profile is uploaded into CODIS, it is compared to the DNA samples collected from crime scenes. If the database reveals a “hit,” the offender DNA sample is tested again for confirmation. If the test confirms a match, CODIS informs the laboratory that submitted the crime scene sample of the identity of the matching DNA profile, and the laboratory sends that information to law enforcement.

Only law enforcement officials are permitted to access a DNA profile, and they may only use the DNA to identify criminal suspects. Cal.Penal Code §§ 295.1(a); 299.5(f). They may not use the sample to reveal other traits, such as medical conditions. Unauthorized access or disclosure of DNA information is punishable under State law by up to a year in prison and a fine of up to $50,000. Cal.Penal Code § 299.5(i). Federal law imposes similar penalties for unauthorized use of, or access to, CODIS. See 42 U.S.C. § 14133(c), 14135e(c).

An arrestee who is not ultimately convicted may ask either the California Department of Justice or the trial court to order the sample destroyed and the DNA profile expunged. Cal.Penal Code § 299. The individual must await the expiration of the statute of limitations for the crime(s) for which he or she was charged before requesting expungement, unless prosecutors dismiss the charges sooner. The court may order the expungement 180 days after the arrestee's request. Id.

After the police determined that probable cause existed in each case, Plaintiffs were arrested for felonies in California and provided DNA samples. However, they were never convicted of the felonies for which they were charged. On October 7, 2009, Plaintiffs filed a class-action complaint against the State officials who administer the DNA collection system. The class consists of “persons who are required to provide a DNA sample pursuant to § 296(a)(2)(C) solely as a result of being arrested for a felony.” Their lawsuit, filed under 42 U.S.C. § 1983, alleges that the 2004 Amendment violates their Fourth Amendment rights to be free from unreasonable searches and seizures, and their Fourteenth Amendment due process rights.1 They then sought a preliminary injunction to enjoin California from collecting DNA samples from people who were...

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  • People v. Roberts
    • United States
    • California Court of Appeals Court of Appeals
    • August 20, 2021
    ...right to privacy.16 Judge Smith was the author of the original majority opinion issued by the three-judge panel. (See Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049.)17 As our high court in Buza noted: "Information obtained from an arrestee's DNA is confidential and may not be disclosed to......
  • United States v. Davis
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    • U.S. Court of Appeals — Fourth Circuit
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    ...in CODIS and in increasing the number of entries in CODIS to improve its efficacy as a crime-solving tool. See Haskell v. Harris, 669 F.3d 1049, 1062 (9th Cir.2012), reh'g en banc granted,686 F.3d 1121 (2012) (upholding California law requiring police to collect DNA samples from all adult f......
  • King v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 24, 2012
    ...of the body. In short, I agree with the reasoning of the United States Court of Appeals for the Ninth Circuit in Haskell v. Harris, 669 F.3d 1049, 1059 (9th Cir. 2012). The court in Haskell upheld a DNA collection statute that permits buccal swabs of all adults arrested for felonies explain......
  • King v. State
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    • Maryland Court of Appeals
    • May 18, 2012
    ...of the body. In short, I agree with the reasoning of the United States Court of Appeals for the Ninth Circuit in Haskell v. Harris, 669 F.3d 1049, 1059 (9th Cir.2012). The court in Haskell upheld a DNA collection statute that permits buccal swabs of all adults arrested for felonies explaini......
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