In the last edition of Forensic Magazine I briefly mentioned that the American Civil Liberties Union had filed its class action law suit in California challenging the implementation of that state’s arrestee DNA database legislation. Craftily selecting as its lead “plaintiffs” a woman arrested for misconduct at a peace rally and a young man arrested for receiving stolen property, the ACLU hopes for a decision that will serve to derail efforts across the country to include arrestee DNA profiles in state and national forensic DNA databases. And as part of their strategy, the ACLU filed for a preliminary injunction, which would have required the State of California to cease taking samples from its legislatively authorized arrestees until the ultimate resolution of the class action suit. Fortunately for many potential victims and for many suspects who would be otherwise wrongly arrested for crimes they did not commit, the Federal judge deciding the preliminary injunction has ruled against the ACLU in Elizabeth A. Haskell and Reginald Ento v. Edmund G. Brown Jr. et al.

On December 23, 2009, United States District Judge Charles R. Breyer (yes, the brother of U.S. Supreme Court Justice, Stephen Breyer) denied the ACLU’s petition for a preliminary injunction. Judge Breyer’s decision however, laid out an analysis which many hope will be followed by higher Courts in this case and in other Courts throughout the country.

As the Court pointed out, in order to be successful in their request for an injunction, the ACLU had to establish that (1) they were likely to succeed on the merits; (2) that the plaintiffs faced irreparable harm in the absence of the injunction; (3) the balance of equities tips in the plaintiff’s favor; and (4) an injunction is in the public interest.

In addressing the plaintiff’s argument that California’s arrestee testing law constituted an unreasonable search under the Fourth Amendment to the Constitution, the Court first established that determining the reasonableness of a search has been decided in the Ninth Circuit by a “totality of the circumstances test.” Citing precedent such as United States v. Kincade, the Court recognized that even where biological samples were taken by blood rather than the even less intrusive buccal swab, “the intrusion occasioned by the blood test is not significant because such tests are commonplace, the quantity of blood extracted is minimal, and the procedure usually involves no risk, trauma, or pain.” Further, the Court acknowledged that DNA samples “establish only a record of identity…in which the qualified offender can claim no right of privacy…once lawfully arrested and booked into state custody.”