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.”

But the Court referenced Kincade for another important rejection of an oft proffered argument by the ACLU in its opposition to arrestee testing—the argument of potential misuse. Citing the protections against misuse in the act which established the convicted offender database, the Court in Kincade stated, “our job is limited to resolving the constitutionality of the program before us, as it is designed and as it has been implemented.” In other words, it is not the job of the Court to hypothesize based on a worst case scenario or on an assumption of ultimate police wrongdoing. Rather the Court is to consider the constitutionality of the law as it is intended to be implemented. Further, when assessing the extent of the government’s interest, albeit in the context of Kincade and convicted offender testing, the court in Haskell used Kincade’s language to emphasize that the value of DNA testing in solving crime and bringing closure to victims is “monumental.” When addressing the issue of identifying arrestees specifically, the court stated, “the government has a strong interest in identifying arrestees.”

Significantly, the Court went on to recognize and address the distinction between simply identifying a person and then using that identification to solve crime. It clearly and concisely stated: “Identification means both who that person is and what that person has done.” Interestingly, plaintiffs could point to no precedent holding that once an individual has been identified through his fingerprints that police were then barred from running those prints against crime scene samples for investigative purposes.

Having established an “overwhelming societal interest” in the convicted offender database, the Court went on to analyze the individual’s interest in the context of arrestee testing and the plaintiff’s case. While recognizing that the privacy interests of arrestees is certainly greater than that of convicted offenders, the Court looked at the privacy interest in light of other identifying functions that already exist in the booking process such as fingerprinting. Citing established law that states once an individual is lawfully arrested and booked into custody he can claim no right of privacy in his own identity, the Court concluded that “plaintiffs have not articulated how DNA differs in a legally significant way from other means of identification.” The Court even went on to note that the plaintiff’s argument that DNA is somehow different because of the personal nature of the biological sample and genetic profile was “…emotionally stirring, but not legally compelling.”

The Court went further to acknowledge the value of arrestee testing in solving old crimes, to conclude that no “irreparable harm” could be shown, and ultimately to conclude that the plaintiffs had proved little likelihood of success. In its concluding argument however, the Court took note of an important fact. When addressing the issue of public interest, the Court recognized that proposition 69, the voter referendum which authorized DNA sampling of arrestees in California was approved with 62.1% of the vote. Thus the Court stated, perhaps with a hint of sarcasm, “the public interest likely favors the government.”

I should think so.

Chris Asplen is a former Assistant U.S. Attorney and local prosecutor specializing in the prosecution of sex crimes and child abuse. Currently, he consults with local, state, and foreign governments and law enforcement agencies on the use of forensic DNA technology. Chris is also a member of the Crime Victim Bar Association.