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February 23, 2012

Split Ninth Circuit uphold California DNA collection from all felony arrestees

Though not really a sentencing case, I suspect many readers of this blog will be interested in a split Ninth Circuit panel decision today in Haskell v. Harris, No. 10-15152 (9th Cir. Feb. 23, 2012) (available here), which has a majority opinion that gets started this way:

Plaintiffs-Appellants 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.

February 23, 2012 at 03:39 PM | Permalink


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The 9th Circuit has rapidly been moving from the extreme left to the right. Now it is about evenly split left and right. In general, the 3-judge lottery draw will determine the outcome of many cases no matter how effectively (or ineffectively) arguments are presented.

In this case, the two judges who voted to affirm the opinion were nominated by Ronald Reagan and George W. Bush. The dissenter was nominated by Bill Clinton.

The 9th circuit is not only split by politics, there are very few true moderates.

Fletcher: Clinton (DEMOCRAT-DISSENT)
Smith Jr: George W. Bush (REPUBLICAN-AFFIRM)

I have to admit, one can argue law and procedure all one wants, but in the end, it's easy to predict the results in many cases. Of course, I look at constitutional interpretation as part of the mix, and how justices interpret such with regard to criminal activity.

Posted by: Eric Knight | Feb 23, 2012 4:55:29 PM

of course, eric, when Ninth Circuit cases go to SCOTUS (esp. on criminal and habeas matters), the dem judges' records are far worse than the GOP judges'--the unanimous slapdowns have been pretty embarrassing.

Posted by: federalist | Feb 23, 2012 5:00:26 PM

Eric Knight, federalist

hasn't Milan Smith gone left on a few death cases since appointment?

Posted by: DaveP | Feb 23, 2012 5:28:15 PM

Federalist, I actually make no judgments on the decisions. For the most part, the GOP adherence to the Constitution, for the most part, is more consistent than the liberals' adherence. For the most part, the GOP is far easier to predict, though politically it is easy to predict either.

This does have me inquiring into quantifying my observations into an empirical dataset. I think that if I look at the last few months of decisions I'll be able to determine not only a pattern, but a clearcut snapshot on how justices will rule in virtually any case, as long as I know the parameters of each case beforehand.

Posted by: Eric Knight | Feb 23, 2012 5:31:17 PM

Judge Milan Smith wrote for the 9th Circuit majority reversing Scott Pinholster's death sentence which we know was tossed by SCOTUS.

Posted by: DaveP | Feb 23, 2012 5:33:40 PM

Smith also wrote the Stolen Valor Act opinion reviewed in the Supreme Court yesterday. If you tried to predict his votes by the fact he was appointed by a Republican president, you would be mostly wrong.

Posted by: Kent Scheidegger | Feb 23, 2012 6:26:19 PM

I am looking at decisions based upon adherence to original constitutional interpretation as opposed to modified, or creative, constitutional interpretation. It's not as simple as saying that someone is "to the left" or "to the right" of someone based on a decision. The left typically picks and chooses its constitutionality based less upon individual rights, and more upon non-constitutionally based group edict. However, some of the issues involved with constitutionality may go against the "norm" when it comes to politics.

It may be hard to describe except on a case-by-case basis, but seasoned court watchers who are also political "junkies" as myself can generally read the winds.

This test will be interesting, in any case.

Posted by: Eric Knight | Feb 23, 2012 7:15:01 PM

This is going en banc. 100% guarantee. Same thing as happened in Pool, only the majority opinion is weaker here than was Callahan's opinion in Pool.

Posted by: Alex | Feb 23, 2012 8:41:05 PM

Of course it's constitutional. Misdemeanor convictions also must furnish DNA. After this is all settled, look for it being retroactive as a regulation for public safety (and not further punishment).

Posted by: George | Feb 23, 2012 11:51:32 PM

In his dissent, Fletcher takes the time to discuss the circumstances of the arrests of each of the four individual plaintiffs. Two were not even charged. Charges were filed and then dismissed against the other two.

The majority does not go into these details. Why?

Those who favor the panel majority's decision are mostly big-governement, in-your-face, authoritarians. In other words, they are mostly Republicans, who would have you believe they favor small government. Supporters also include other enemies of liberty, like many mainstream Democrats and the Obama Administration.

The ACLU and the Libertarian Party rightly oppose a decision like this. This decision is for those who value and trust the State over the individual. The decision is yet another judicial abomination.

Posted by: Calif. Capital Defense Atty. | Feb 24, 2012 1:42:26 PM

Holy crap. Reasoning like this turns the rationale of the Bill of Rights and the Reconstruction Amendments applying it to the states on its head. The decision basically presumed that the government will act in benign and paternalistic ways to protect us, and can therefore be trusted to intrude on our privacy even when we have done nothing wrong. But the Founding Fathers presumed exactly the opposite -- that Governments, even when composed of good people, and even when democratically elected, would inevitably tend to aggrandize their own power and control. We are supposed to jealously guard our liberties unless the Government has a very good justification for impinging them; not cede our rights to the Government unless we can make an impenetrable case for retaining them.

And characterizing the "intrusion" as the actual mouth swab, rather than the extraction and retention of *information* is to miss the entire point.

And then if they don't charge you, or you or acquitted, or charges dismissed, etc., the burden is on *you* to try to get your DNA out of the system. Bah humbug. A pox on your DNA act.
This will definitely go en banc. If I recall, Judge Kozinski has already written pretty strongly about his Fourth Amendment opposition to DNA collection for a mere arrest.

Posted by: Anon | Feb 24, 2012 2:01:41 PM

One addendum: for those who would poo-poo my skepticism about the presumption of a beneficent Government, I should have somehow worked the following terms into the above post: Cointelpro, Enemies list, HUAC.

'nuf said.

Posted by: Anon | Feb 24, 2012 2:06:33 PM

Oops: Church committee. HTLINGUAL.

Posted by: Anon | Feb 24, 2012 2:07:49 PM

Right on Anon.

The panel majority's decision is attributable to the disturbing mindset of the likes of Bill Otis, federalist, Rick Santorum, Barack Obama, and other similar jack-booted thugs.

They think they know what is best for the rest of us. And, by god, they will enlist the coercive power of the police State to impose their will upon all of us. Never mind the Founders' distrust of government; these folks think they wear white hats, they think it's them vs. us, and they're willing to relinquish more and more liberties to the State in furtherance of their twisted vision of how things ought to be.

Posted by: Calif. Capital Defense Atty. | Feb 24, 2012 3:21:07 PM

this is so so true anon!

"And characterizing the "intrusion" as the actual mouth swab, rather than the extraction and retention of *information* is to miss the entire point."

It is in FACT and LAW the same BULLSHIT lie the courts were fed in 2002 in the U.S. SUPREME COURT that created the sex offender registry!

"the minumual inconvience of returning a 3x5 post card once a year was so limited as to be legal"

Never mind that what we have NOW is so far removed from that you would need the STARSHIP ENTERPRISE to cross the gulf!

Posted by: rodsmith | Feb 24, 2012 3:52:15 PM

so since they SET that history a DECADE ago i guess we can all get ready to have mum-nut cops EVERYWARE to now carry sealed swabs next to their handcuffs for that mandatory swab after the cuffs are on!

Posted by: rodsmith | Feb 24, 2012 3:53:29 PM

Big Government has more to do with the control/power government has over the people, than it does debts and deficits - regardless of what the righties would have everyone believe. You don't think the drones flying over the U.S. has anything to do with terrorism, do you?

Posted by: Huh? | Feb 26, 2012 2:58:16 PM

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