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DNA testing of felony suspects upheld by appeals court

February 23, 2012 |  2:44 pm

A 2004 law requiring jailers to take DNA samples from anyone arrested for alleged felonies doesn't violate the prisoners' constitutional right to be free from unreasonable search and seizure, a divided federal appeals court ruled Thursday.

In a 2-1 ruling, the U.S. 9th Circuit Court of Appeals said the government's interests in solving crimes and positively identifying suspects outweigh the detainees' privacy concerns.

The panel majority -- both judges named to the federal bench by Republican presidents -- likened the minimally invasive oral swabbing of those entering the jails to fingerprinting, a decades-old booking practice for identification purposes that has been consistently upheld by the courts.

“DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects,” Judge Milan D. Smith Jr. wrote in the opinion joined by a visiting federal judge from Tennessee.

But Judge William A. Fletcher dissented, arguing that 9th Circuit and U.S. Supreme Court case law make clear that DNA testing for investigative purposes requires a warrant and probable cause to believe a felony has been committed.

About a third of the 300,000 arrested on felony allegations each year in California aren't convicted, and many are never charged at all, said Fletcher, named to the court by President Clinton.

Three of the four lead plaintiffs in the class-action lawsuit brought on their behalf by the American Civil Liberties Union of Northern California had been arrested at demonstrations in the Bay Area against U.S. foreign policy and state college tuition hikes.

Elizabeth Haskell, who was arrested at a peace demonstration in San Francisco in 2009, was threatened with prosecution unless she submitted to the DNA collection but was never charged.

She told the court she considered the swabbing "an intimidation tactic" to deter her from exercising her free-speech rights.

Michael T. Risher, the ACLU lawyer who argued the case, said a petition for rehearing by the full 9th Circuit was likely and that he expected the judges to be inclined to reconsider the split panel ruling.

"This is clearly an issue where different reasonable judges have differing opinions and we’ll have to see how it ends up,” Risher said.

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-- Carol J. Williams

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