People v. Buza

Filed 4/2/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S223698

v. )

) Ct.App. 1/2 A125542

MARK BUZA, )

) San Francisco County

Defendant and Appellant. ) Super. Ct. No. SCN 207818

____________________________________)

In 2004, California voters passed Proposition 69 (Prop. 69, as approved by

voters, Gen. Elec. (Nov. 2, 2004); known as the “DNA Fingerprint, Unsolved

Crime and Innocence Protection Act” (DNA Act)) to expand existing requirements

for the collection of DNA identification information for law enforcement

purposes. The DNA Act requires law enforcement officials to collect DNA

samples, as well as fingerprints, from all persons who are arrested for, as well as

those who have been convicted of, felony offenses. (Pen. Code, § 296.1, subd.

(a)(1)(A).)

Defendant Mark Buza was arrested for arson and related felonies and

transported to jail. At booking, a jail official informed defendant that he was

required to provide a DNA sample by swabbing the inside of his cheek. He

refused. A jury later convicted him of both the arson-related felonies and the

misdemeanor offense of refusing to provide a specimen required by the DNA Act.

(Pen. Code, § 298.1, subd. (a).)

SEE DISSENTING OPINIONS

The Court of Appeal reversed defendant’s misdemeanor refusal conviction,

holding that the DNA Act violated defendant’s rights under the Fourth

Amendment to the United States Constitution. While the case was pending on

appeal, the United States Supreme Court addressed a similar issue in Maryland v.

King (2013) 569 U.S. 435 (King), and reached a different conclusion. The high

court held that “[w]hen officers make an arrest supported by probable cause to

hold for a serious offense and they bring the suspect to the station to be detained in

custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like

fingerprinting and photographing, a legitimate police booking procedure that is

reasonable under the Fourth Amendment.” (Id. at pp. 465–466.)

Following the high court’s decision in King, this case returned to the Court

of Appeal. On remand, the Court of Appeal again reversed defendant’s

misdemeanor refusal conviction, this time on the ground that the DNA Act

violates the California Constitution’s prohibition on unreasonable searches and

seizures. (Cal. Const., art. I, § 13.)

Defendant raises a number of questions about the constitutionality of the

DNA Act as it applies to various classes of felony arrestees. But the question

before us is a narrower one: Whether the statute’s DNA collection requirement is

valid as applied to an individual who, like defendant, was validly arrested on

“probable cause to hold for a serious offense”—here, the felony arson charge for

which defendant was ultimately convicted—and who was required to swab his

cheek as “part of a routine booking procedure” at county jail. (King, supra, 569

U.S. at p. 465.) Under the circumstances before us, we conclude the requirement

is valid under both the federal and state Constitutions, and we express no view on

the constitutionality of the DNA Act as it applies to other classes of arrestees. We

accordingly reverse the judgment of the Court of Appeal in this case.

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I.

A.

For decades before the DNA Act, California law had required the collection

of biological samples from individuals convicted of certain offenses. In 1983, the

Legislature enacted legislation requiring certain sex offenders to provide blood

and saliva samples before their release or discharge. (Stats. 1983, ch. 700, § 1,

pp. 2680–2681, codified at Pen. Code, former § 290.2.) In 1998, the Legislature

enacted the “DNA and Forensic Identification Data Base and Data Bank Act,”

which required the collection of DNA samples from persons convicted of certain

felony offenses, including certain sex offenses, homicide offenses, kidnapping,

and felony assault or battery. (Stats. 1998, ch. 696, § 2, pp. 4574–4579; Pen.

Code, former § 296, subd. (a).)

When the California electorate voted to pass Proposition 69 on the 2004

general election ballot, it substantially expanded the scope of DNA sampling to

include individuals who are arrested for any felony offense, as well as those who

have been convicted of such an offense. In People v. Robinson (2010) 47 Cal.4th

1104 (Robinson), this court upheld the expanded DNA collection requirement as

applied to persons convicted of felony offenses. The question now before us

concerns the application of the DNA Act to persons who have been arrested for,

but not yet convicted of, a felony offense.

In its statutory findings and declarations of purpose, Proposition 69

explained that expansion of the DNA databank program was warranted to serve a

“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.” (Prop. 69, supra,

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§ II, subd. (b).) With respect to arrestees in particular, Proposition 69 declared:

“The state has a compelling interest in the accurate identification of criminal

offenders”; that “DNA testing at the earliest stages of criminal proceedings for

felony offenses will help thwart criminal perpetrators from concealing their

identities and thus prevent time-consuming and expensive investigations of

innocent persons”; and “it is reasonable to expect qualifying offenders to provide

forensic DNA samples for the limited identification purposes set forth in this

chapter.” (Id., § II, subds. (e), (f).)

The DNA Act provides that, as of January 1, 2009, all adult felony arrestees

“shall provide buccal swab samples, right thumbprints, and a full palm print

impression of each hand, and any blood specimens or other biological samples

required pursuant to this chapter for law enforcement identification analysis.”

(Pen. Code, § 296, subd. (a).) Providing a buccal swab sample requires the

arrestee to apply a swab to the inside of his or her cheek to collect the “inner cheek

cells of the mouth,” which contain DNA. (Id., § 295, subd. (e).) The statute

provides that these specimens, samples, and print impressions shall be collected

“immediately following arrest, or during the booking . . . process or as soon as

administratively practicable . . . but, in any case, prior to release on bail or pending

trial or any physical release from confinement or custody.” (Id., § 296.1, subd.

(a)(1)(A).) Refusal to provide any of the required specimens is punishable as a

misdemeanor. (Id., § 298.1, subd. (a).)

Collected DNA samples are sent to California Department of Justice’s

DNA Laboratory for forensic analysis. (Pen. Code, §§ 295, subds. (f), (g),

(i)(1)(C), 295.1, subd. (c).) The laboratory uses the samples to create a unique

DNA identification profile, using genetic loci that are known as “junk” or

“noncoding” DNA, because the loci have no known association with any genetic

trait, disease, or predisposition. (See King, supra, 569 U.S. at pp. 442–443, 445.)

4

This profile is stored in California’s DNA databank. California’s DNA databank

is part of the Combined DNA Index System (CODIS), a nationwide database that

enables law enforcement to search DNA profiles collected from federal, state, and

local collection programs. (See ibid.; Pen. Code, § 299.6, subd. (b); Cal. Dept. of

Justice (DOJ), Bureau of Forensic Services (BFS), Laboratory Services, DNA

Analysis, <https://oag.ca.gov/bfs/services> [as of Apr. 2, 2018].) DNA profiles

stored by the DNA Laboratory may be accessed by law enforcement agencies.

(Pen. Code, § 299.5, subd. (f).) The DNA Laboratory must “store, compile,

correlate, compare, maintain, and use” DNA profiles for forensic casework, for

comparison with samples found at crime scenes, and for identification of missing

persons. (Id., § 295.1, subd. (c).)

Information obtained from an arrestee’s DNA is confidential and may not

be disclosed to the public. (Pen. Code, § 299.5.) DNA samples and the biological

material from which they are obtained may not be used “as a source of genetic

material for testing, research, or experiments, by any person, agency, or entity

seeking to find a causal link between genetics and behavior or health.” (Id.,

§ 295.2.) Any person who knowingly uses a DNA sample or profile for any

purpose other than “criminal identification or exclusion purposes” or “the

identification of missing persons,” or who “knowingly discloses DNA or other

forensic identification information . . . to an unauthorized individual or agency”

for any unauthorized reason is subject to criminal prosecution and may be

imprisoned for up to three years and fined up to $10,000. (Id., § 299.5, subd.

(i)(1).) The Department of Justice is also subject to civil damages for knowing

misuse of a sample or profile by any of its employees. (Id., § 299.5, subd.

(i)(2)(A).)

The DNA Act provides that if an arrestee is cleared of charges and there is

no other basis for keeping the information, the arrestee “shall have his or her DNA

5

specimen and sample destroyed and searchable database profile expunged from

the databank program.” (Pen. Code, § 299, subd. (a).) An arrestee may request

expungement if he or she is released without being charged, if all qualifying

charges against the arrestee are dismissed, or if the arrestee is found not guilty or

factually innocent of all qualifying charges. (Id., § 299, subd. (b).) The federal

legislation establishing CODIS likewise requires participating states to “promptly

expunge” the DNA profile of any person who is cleared of qualifying charges. (34

U.S.C. § 12592(d)(2)(A).)

The DNA Act includes a broad severability provision. The provision

specifies that the invalidity of certain provisions or their application “shall not

affect other provisions or applications that can be given effect without the invalid

provision or application.” (Prop. 69, supra, § V, subd. (b).)

B.

On the afternoon of January 21, 2009, a San Francisco police officer saw

defendant running away from a police car that had burning tires. Police found

defendant hiding nearby and searched him. Matches were found in defendant’s

pocket, a container of oil was found in his backpack, and a road flare and a bottle

containing a liquid that smelled like gasoline were discovered in the area where he

had been hiding.

Defendant was arrested and taken to county jail. There, several hours after

the initial arrest, a San Francisco sheriff’s deputy asked defendant to swab the

inside of his cheek for purposes of providing a sample of his DNA. The deputy

told defendant he was required by law to provide the sample, asked defendant to

read a form that described the pertinent requirements, and warned defendant that

refusing to provide a DNA sample was a misdemeanor. Defendant refused.

On January 22, 2009, a judge of the Superior Court found probable cause to

believe that defendant committed a public offense for which he could be detained,

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namely, felony arson in violation of Penal Code section 451, subdivision (d). The

next day, the district attorney filed a felony complaint charging defendant with

that offense, as well as possession of combustible material or incendiary device

(id., § 453, subd. (a)), and vandalism (id., § 594, subd. (b)(1)). The complaint also

charged defendant with misdemeanor refusal to provide a DNA specimen (id.,

§ 298.1, subd. (a)). Defendant was arraigned on the same day and pleaded not

guilty to the charges.

Approximately three months later, defendant was tried before a jury.

Defendant moved for judgment of acquittal on the misdemeanor refusal charge,

arguing that the Fourth Amendment did not permit the state to compel arrestees to

furnish DNA samples. The court denied the motion. At trial, defendant admitted

to setting the police car on fire; he testified that while he regarded setting the fires

as a justified protest against government overreach, he knew his act was regarded

as illegal. Defendant also admitted to refusing to provide a DNA sample in

accordance with Penal Code section 298.1. The jury convicted defendant of all

charges.

The trial court ordered defendant to provide a DNA sample before he was

sentenced, and when defendant initially refused to comply with the order, the court

authorized the Sheriff’s Department to use reasonable force to obtain the sample.

Defendant then furnished a DNA sample. The court sentenced defendant to a

prison term of 16 months on the arson charge, imposed concurrent sentences on

the charges of possession of combustible material and misdemeanor refusal to

provide a DNA specimen, and stayed the sentence on the vandalism charge under

Penal Code section 654.

On appeal, the Court of Appeal reversed defendant’s conviction for

refusing to provide a DNA sample. The court held that “the DNA Act, to the

extent it requires felony arrestees to submit a DNA sample for law enforcement

7

analysis and inclusion in the state and federal DNA databases, without

independent suspicion, a warrant or even a judicial or grand jury determination of

probable cause, unreasonably intrudes on such arrestees’ expectation of privacy

and is invalid under the Fourth Amendment of the United States Constitution.”

We granted review. While the case was still pending, the United States

Supreme Court issued its decision in King, supra, which upheld a similar DNA

collection requirement against Fourth Amendment challenge. Following King, we

transferred this case to the Court of Appeal for reconsideration.

The Court of Appeal again reversed defendant’s conviction. Although the

court observed that California’s DNA collection law is broader than the Maryland

law at issue in King, the court declined to decide whether the differences between

the California law and the Maryland law change the Fourth Amendment calculus

under King. The Court of Appeal instead rested its decision on the prohibition on

unreasonable searches and seizures in article I, section 13 of the California

Constitution. In language closely paralleling its initial decision, the court held that

“the DNA Act, to the extent it requires felony arrestees to submit a DNA sample

for law enforcement analysis and inclusion in the state and federal DNA

databases, without independent suspicion, a warrant or even a judicial or grand

jury determination of probable cause, unreasonably intrudes on such arrestees’

expectation of privacy and is invalid under article I, section 13, of the

Constitution.”

In the wake of King, other California Courts of Appeal have addressed the

constitutionality of the DNA Act in the context of reviewing decisions regarding

the suppression of evidence derived from DNA samples collected from felony

arrestees. Those courts have concluded that, under King’s reasoning, the

collection and testing of arrestee DNA samples under the DNA Act does not

violate the Fourth Amendment.

8

We granted review to decide whether the collection and analysis of forensic

identification DNA database samples from felony arrestees, as required by

Proposition 69, violates either article I, section 13 of the California Constitution or

the Fourth Amendment to the United States Constitution.1

II.

The Fourth Amendment to the United States Constitution provides, in

pertinent part: “The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be

violated.” Article I, section 13 of the California Constitution provides, in

essentially identical language: “The right of the people to be secure in their

persons, houses, papers, and effects against unreasonable seizures and searches

may not be violated.”

As the constitutional language itself makes plain, the “touchstone for all

issues” under both provisions is “reasonableness.” (Ingersoll v. Palmer (1987) 43

Cal.3d 1321, 1329; accord, e.g., Riley v. California (2014) 573 U.S. ___, ___ [134

S.Ct. 2473, 2482].) The question before us is whether it was unreasonable within

the meaning of one or both of these provisions to require defendant to use a cheek

swab to provide a DNA sample to jail officials as part of the booking process

following his arrest for arson. If so, defendant cannot be penalized for failure to

comply, and his misdemeanor refusal conviction must be reversed. If, on the other

hand, the requirement was reasonable, then defendant’s conviction stands. (See

1 Defendant did not invoke the California Constitution in the trial court or in

his first round of appellate briefing, instead relying solely on the Fourth

Amendment. The Court of Appeal, however, relied on the California Constitution

in its decision on remand after King. We accordingly address the questions raised

under both the Fourth Amendment and article I, section 13 of the California

Constitution.

9

Birchfield v. North Dakota (2016) 579 U.S. ___, ___–___ [136 S.Ct. 2160, 2172–

2173].)

The United States Supreme Court’s decision in King, which was issued

while this appeal was pending, has significantly altered the terms of the debate.

After King, defendant no longer argues, as he had argued in the courts below, that

the Fourth Amendment categorically forbids the mandatory collection of DNA

from persons who have been arrested but not yet convicted of felony offenses.

Defendant argues instead that King should be either distinguished on its facts or

rejected as a matter of state constitutional law. Because both arguments require us

to consider the import of the United States Supreme Court’s decision in King, we

will begin there.

A.

King came to the high court against the backdrop of increasingly

widespread use of DNA technology in criminal justice systems nationwide. As

the court observed, all 50 states and the federal government require the collection

of DNA samples from individuals who are convicted of felony offenses. In recent

years, a majority of states and the federal government have also authorized the

collection of DNA from some or all persons arrested for felony offenses. (King,

supra, 569 U.S. at p. 445.) Although courts had generally approved the collection

of DNA samples following conviction, the permissibility of this expansion of

DNA sampling proved more controversial. The high court granted review in King

to resolve a conflict among federal and state courts “as to whether the Fourth

Amendment prohibits the collection and analysis of a DNA sample from persons

arrested, but not yet convicted, on felony charges.” (Id. at p. 442.)

The specific question before the court concerned the application of a

Maryland law that authorized law enforcement authorities to collect DNA samples

from an individual charged with certain statutorily defined “crime[s] of violence,”

10

including murder, rape, first degree assault, kidnapping, arson, and sexual assault,

as well as burglary and an attempt to commit one of these enumerated crimes.

(King, supra, 569 U.S. at p. 443.) The defendant in King had been arrested and

charged with one such offense, “first- and second-degree assault for menacing a

group of people with a shotgun.” (Id. at p. 440.) The same day, his cheek was

swabbed for DNA as part of the booking process. The sample matched DNA that

had been collected from a rape victim several years earlier, and the defendant was

charged with and convicted of the rape. Appealing that conviction, defendant

argued that the DNA sample had been taken in violation of his Fourth Amendment

rights and should have been suppressed. The Maryland Court of Appeals agreed

and overturned the rape conviction. (Ibid.)

The United States Supreme Court reversed. The high court agreed with the

Maryland court that a buccal swab for the collection of DNA samples—like any

invasion of the body—is a search within the meaning of the Fourth Amendment,

“gentle” though the search may be. (King, supra, 569 U.S. at p. 446.) But the

court held that both the initial collection of a DNA sample and its subsequent

processing pursuant to CODIS procedures is, “like fingerprinting and

photographing, a legitimate police booking procedure that is reasonable under the

Fourth Amendment.” (Id. at p. 466.)

The high court explained that, as a general rule, a search is presumptively

unreasonable if it is undertaken in the absence of a warrant or individualized

suspicion of wrongdoing. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S.

646, 652–653.) But “[i]n some circumstances, such as ‘[w]hen faced with special

law enforcement needs, diminished expectations of privacy, minimal intrusions, or

the like, the Court has found that certain general, or individual, circumstances may

render a warrantless search or seizure reasonable.’ ” (King, supra, 569 U.S. at

p. 447, quoting Illinois v. McArthur (2001) 531 U.S. 326, 330.) The court

11

concluded that the buccal swab of an arrestee on booking falls into a category of

routine searches, justified by special law enforcement needs, that is properly

analyzed “by reference to the proposition that the ‘touchstone of the Fourth

Amendment is reasonableness, not individualized suspicion.’ ” (King, at p. 448.)

Weighing the privacy-related concerns at stake against law enforcement

needs, the court concluded that the search was reasonable. On the law

enforcement side of the balance, the court identified five interrelated governmental

interests in obtaining the DNA sample. First, the court explained, the state has an

interest in knowing “ ‘who has been arrested and who is being tried.’ ” (King,

supra, 469 U.S. at p. 450, quoting Hiibel v. Sixth Judicial Dist. Court of Nev.,

Humboldt County (2004) 542 U.S. 177, 191.) “A suspect’s criminal history,” the

high court continued, “is a critical part of his identity that officers should know

when processing him for detention,” and “[a] DNA profile is useful to the police

because it gives them a form of identification to search the records already in their

valid possession” for the suspect’s criminal history. (King, at pp. 450–451.) In

this respect, the court said, the profile serves the same purpose as a name or

fingerprints. (Id. at p. 451.) Second, the high court reasoned, “DNA identification

can provide untainted information to those charged with detaining suspects and

detaining the property of any felon,” which is significant because “officers must

know the type of person whom they are detaining, and DNA allows them to make

critical choices about how to proceed.” (Id. at p. 452.) Third, the court noted,

using DNA samples to determine whether the accused has committed other crimes

furthers the state’s “ ‘substantial interest in ensuring that persons accused of

crimes are available for trials.’ ” (Ibid.) This is so, it said, because “[a] person

who is arrested for one offense but knows that he has yet to answer for some past

crime may be more inclined to flee the instant charges,” thereby presenting “a risk

to law enforcement officers, other detainees, victims of previous crimes,

12

witnesses, and society at large.” (Id. at p. 453.) Fourth, the court explained, “an

arrestee’s past conduct is essential to an assessment of the danger he poses to the

public,” which may determine “whether the individual should be released on bail.”

(Ibid.) And fifth, the court noted, “the identification of an arrestee as the

perpetrator of some heinous crime may have the salutary effect of freeing a person

wrongfully imprisoned for the same offense.” (Id. at p. 455.)

Law enforcement agencies, the court explained, “routinely have used

scientific advancements in their standard procedures for the identification of

arrestees” (King, supra, 569 U.S. at p. 456), including photographs, body

measurements, and fingerprints. The court observed that fingerprinting, in

particular, is “[p]erhaps the most direct historical analogue to the DNA

technology” at issue in the case (id. at p. 458): fingerprints have long been taken

for purposes of comparison to identify suspects and for purposes of matching them

to fingerprints taken from the scene of unsolved crimes, and electronic databases

are now available that facilitate the comparison (id. at pp. 436, 458–459). DNA

identification, the court noted, is a “markedly more accurate form of identifying

arrestees” and the “additional intrusion upon the arrestee’s privacy beyond that

associated with fingerprinting is not significant.” (Id. at p. 459.) “DNA

identification,” the court reasoned, “is an advanced technique superior to

fingerprinting in many ways, so much so that to insist on fingerprints as the norm

would make little sense to either the forensic expert or a layperson.” (Ibid.)

Compared to this set of governmental interests, the high court concluded

that the privacy interests at stake were more limited. To begin with, the court

explained, the buccal swab used to obtain a DNA sample is a “minimal intrusion.”

(King, supra, 569 U.S. at p. 463.) Moreover, the court noted, “[o]nce an

individual has been arrested on probable cause for a dangerous offense that may

require detention before trial,” that person has a diminished expectation of privacy

13

and “freedom from police scrutiny.” (Ibid.) This diminished expectation

distinguishes arrestee searches from “the sort of programmatic searches of either

the public at large or a particular class of regulated but otherwise law-abiding

citizens” (id. at p. 462), such as checkpoint searches or the drug testing of political

candidates, for which the court has “insisted on some purpose other than ‘to detect

evidence of ordinary criminal wrongdoing.’ ” (Id. at p. 463.)

The high court further concluded that analysis of the DNA sample, once

collected, does not result in a privacy intrusion that violates the federal

Constitution. (King, supra, 569 U.S. at p. 464.) It explained that the processed

DNA loci “come from noncoding parts of the DNA that do not reveal the genetic

traits of the arrestee” and that “law enforcement officers analyze DNA for the sole

purpose of generating a unique identifying number against which future samples

may be matched.” (Ibid.) It also noted that Maryland’s DNA law “provides

statutory protections that guard against further invasion of privacy” (id. at p. 465.);

in the court’s view, these statutory protections allayed the privacy concerns

associated with the state’s analysis of the DNA sample (ibid., citing NASA v.

Nelson (2011) 562 U.S.___, ___ [131 S.Ct. 746, 750]).

For these reasons, the court held that “[w]hen officers make an arrest

supported by probable cause to hold for a serious offense and they bring the

suspect to the station to be detained in custody, taking and analyzing a cheek swab

of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police

booking procedure that is reasonable under the Fourth Amendment.” (King,

supra, 569 U.S. at pp. 465–466.)

B.

At least at first glance, King would seem to resolve the Fourth Amendment

question raised in this case. King holds that DNA identification of arrestees is

reasonable on booking following an arrest supported by probable cause to believe

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the arrestee has committed a serious offense. Defendant in this case was asked to

provide a cheek swab as part of a routine booking procedure following an arrest

supported by probable cause to believe he had committed a serious offense—

namely, felony arson.

Defendant urges us to take a second look, however. He notes that while

California’s legal framework for the collection, analysis, and retention of arrestee

DNA is in many ways similar to the Maryland law upheld in King, it is not

identical. Defendant highlights three features of the DNA Act in particular that, in

his view, distinguish this case from King: (1) the DNA Act applies to a broader

category of arrestees than the Maryland law; (2) the DNA Act, unlike the

Maryland law, authorizes both collection and testing of DNA samples before an

accusatory pleading is filed in court and before a judicial determination has been

made that the charges are valid; and (3) the DNA Act, unlike the Maryland law,

does not provide for automatic destruction of the DNA sample if the arrestee is

cleared of felony charges.

Although these differences between the California and Maryland laws may

be relevant in another case involving a differently situated arrestee, this case

involves a defendant who was validly arrested on probable cause to believe he had

committed felony arson, and who was promptly charged with (and ultimately

convicted of) that offense. In the context of the particular case before us, we

conclude that none of the differences to which defendant points meaningfully

alters the constitutional balance struck in King.

We begin with defendant’s first argument, about the scope of the DNA

Act’s collection requirement. Defendant observes that the Maryland law at issue

in King authorized DNA collection only from those accused of specified serious

crimes, including a category defined as “crime[s] of violence” under state law,

whereas the DNA Act authorizes DNA collection from all felony arrestees. (King,

15

supra, 569 U.S. at p. 443.) Defendant argues that this difference is important

because the seriousness of the crime of arrest figures prominently in the high

court’s balancing analysis: The high court’s opinion states that “the necessary

predicate of a valid arrest for a serious offense is fundamental” (id. at p. 461), and

elsewhere uses language that suggests the court was particularly concerned with

persons arrested for “violent” or “dangerous” crimes (id. at pp. 453, 455). Such a

limitation makes sense, defendant contends, because such crimes are the kinds of

crimes that typically yield DNA evidence.

Defendant appears to read too much into the language on which he relies.

The high court identified the question before it more generally as “whether the

Fourth Amendment prohibits the collection and analysis of a DNA sample from

persons arrested, but not yet convicted, on felony charges.” (King, supra, 569

U.S. at p. 442.) And as a matter of ordinary usage, a felony is considered a

“serious” offense. (See, e.g., Carachuri-Rosendo v. Holder (2010) 560 U.S. 563,

574 [“A ‘felony,’ we have come to understand, is a ‘serious crime usu[ally]

punishable by imprisonment for more than one year or by death.’ ”].) Though the

court also occasionally referred to “violent” and “dangerous” crimes, King did not

purport to limit its holding to those felonies that happen to be classified as

“violent” or “dangerous” as a matter of state law, nor did it purport to create a new

classification of violent offenses as a matter of federal constitutional law.2

2 States are, of course, under no obligation to classify any particular set of

crimes as “violent,” and different states often classify similar crimes differently.

Such “interstate statutory differences do not control the meaning of the Fourth

Amendment.” (Robinson, supra, 47 Cal.4th at p. 1123; cf. Virginia v. Moore

(2008) 553 U.S. 164, 176.) Nor does there exist a body of federal constitutional

law that might supply a relevant classification. (Cf., e.g., Atwater v. City of Lago

Vista (2001) 532 U.S. 318, 345 [declining to adopt a classification of “violent”

misdemeanors for Fourth Amendment purposes].)

16

But in any event, even if the federal Constitution permitted states to

mandate collection of DNA samples only from persons arrested for felonies

classified as particularly serious or violent, defendant in this case was arrested for

felony arson in violation of Penal Code section 451, subdivision (d), a crime that is

classified as a “serious felony” under California law. (See Pen. Code, § 1192.7,

subd. (c)(14).) Defendant does not dispute the characterization.

Defendant’s argument would thus seem to amount to a request that we

reverse his conviction based not on any defect in the DNA Act’s application to his

case, but based on the Act’s potential application to other, differently situated

individuals. This is more than he may reasonably ask. The ordinary rule is “that

one will not be heard to attack a statute on grounds that are not shown to be

applicable to himself.” (In re Cregler (1961) 56 Cal.2d 308, 313 (Cregler).) This

rule does have limited exceptions—most commonly invoked in free speech

cases—but none is relevant here. (Sabri v. United States (2004) 541 U.S. 600,

609–610 (Sabri); see, e.g., United States v. Mitchell (3d Cir. 2011) 652 F.3d 387,

415, fn. 26 (en banc) (Mitchell) [felony arrestee could not raise a successful facial

challenge to federal DNA collection law on the ground that it applies to

misdemeanor arrestees and is therefore overbroad]; cf. Rakas v. Illinois (1978) 439

U.S. 128, 133–134 [“ ‘Fourth Amendment rights are personal rights which, like

some other constitutional rights, may not be vicariously asserted.’ ”].) Outside of

these limited exceptions, and “absent a good reason, we do not extend an

invitation to bring overbreadth claims.” (Sabri, at p. 610.) No such reason

appears in this case.

Defendant next points out that the Maryland law upheld in King permitted

collection of a DNA sample only of arrestees “charged” with qualifying crimes

(Md. Code Ann., Pub. Saf., § 2-504(b)(1)), and prohibited officials from testing

the sample or loading the profile into the statewide database until after the arrestee

17

was arraigned and a judicial officer determined that the arrest was based on

probable cause (id., § 2-504(d)(1)). The DNA Act, by contrast, allows collection

“immediately following arrest” and provides that the samples shall “immediately”

be forwarded to the laboratory for analysis. (Pen. Code, § 295(i)(1)(C).)

Defendant argues that these differences in the time prescribed for the collection

and testing of DNA samples tip the balance against their constitutionality.

There are two elements to this argument: one concerning the timing of the

collection, the other concerning the timing of analysis. As to the timing of

collection, there is no reason to believe that the differences between California’s

law and Maryland’s change the Fourth Amendment balance applicable in this

case. Although the text of the DNA Act does purport to authorize the collection

“immediately following arrest,” that provision was not invoked and is not at issue

here. Rather, jail officials in this case sought to collect a sample of defendant’s

DNA on booking, as part of the routine collection of identifying information. And

King, once again, upheld DNA collection as a “legitimate police booking

procedure,” like fingerprinting or photographing, that enables jail officials to know

whom they have taken into custody. (King, supra, 569 U.S. at p. 466, italics

added.) King itself involved a sample collected on booking. (Id. at p. 441; see

King v. State (Md. 2012) 42 A.3d 549, 557.)3 And there are practical reasons for

3 In his brief, defendant read the Maryland law’s reference to arrestees

“charged” with certain offenses as prohibiting the collection of DNA until a

prosecutor decides whether to file qualifying charges following arrest. (See Md.

Code. Ann., Pub. Saf., § 2-504(b)(1).) But the Attorney General notes that in

Maryland, charges are often filed by the police officer, rather than the prosecutor.

(Md. Rules, rule 4-211(b)(2).) The high court’s opinion in King did not address

the meaning or significance of this provision of the Maryland law; its analysis was

focused not on the nature of the charging decision, but on the fact of an arrest

supported by probable cause.

18

collecting the required DNA sample at the time of booking, along with taking

photographs and fingerprints. Among other things, if the arrestee is released

pending adjudication, officials may not have another opportunity. (See Mario W.

v. Kaipio (Ariz. 2012) 281 P.3d 476, 482 [“If . . . a juvenile is released pending

adjudication and later fails to appear for trial without previously having submitted

a buccal sample, the opportunity to obtain a DNA profile for identification

purposes will have been lost. The State has an important interest in locating an

absconding juvenile and, perhaps years after charges were filed, ascertaining that

the person located is the one previously charged.”].)

As to the second point, defendant argues that it is unreasonable for officials

to proceed to test the DNA sample once collected, and to upload an arrestee’s

profile to the state DNA databank, before a judicial officer has found probable

cause to support the arrest or before charges have been filed. Defendant argues

that it is this step—the testing and recording of the arrestee’s DNA identification

profile—that “represents the far greater intrusion upon privacy.” And a provision

like Maryland’s ensures that this step is not taken before there is third party

confirmation that the defendant was validly arrested and that he or she will face

legal process for a felony offense.

19

Defendant, who has never contested that his arrest was based on probable

cause,4 made no similar argument in the trial court; he argued that it was

impermissible to require him to submit a DNA sample at all, not that it was

unreasonable to do so without a guarantee that the analysis of the sample would be

delayed until probable cause was confirmed by a neutral magistrate or charges

were filed. We observe, however, that the reasoning of King itself does not lend

substantial support to the argument that such a guarantee is required under these

circumstances. Again, King approved “DNA identification”—which necessarily

involves both taking and analyzing the sample—as a “legitimate police booking

procedure” that enables law enforcement to know whom they have in custody.

(King, supra, 569 U.S. at pp. 465–466.) That interest is one that attaches as soon

as the suspect is “formally processed into police custody.” (Id. at pp. 449–450.)

The court attached no significance to the timing provision of the Maryland statute

on which defendant relies. The point was, rather, raised primarily in the dissenting

opinion, which argued that delaying DNA testing until arraignment undermined

the argument that the requirement qualifies as a reasonable booking procedure.

(Id. at pp. 471–472 (dis. opn. of Scalia, J.).)

Defendant contends that the timing of analysis nevertheless ought to figure

in the equation because, as a practical matter, officers ordinarily will not receive a

4 On the contrary, it appears that defendant acknowledged from the outset

that there was probable cause to arrest him. While being placed in a patrol car at

the scene, defendant spontaneously stated, “I didn’t think it would work” and

noted that the officer who initially observed him in the act had “[p]erfect timing,

him coming up the hill like that.” According to his own testimony at trial,

moreover, he anticipated he would be charged for his acts. Justified as his protest

was, he testified, he knew “how the legal system works” and that “[t]hey [we]re

going to regard this as an illegal act.”

20

suspect’s DNA profile until well after booking in any event. When officers make

a warrantless arrest and take a suspect into custody, due process ordinarily

requires that a judicial officer make a probable cause determination promptly after

booking—ordinarily within 48 hours—to justify continued pretrial detention.

(County of Riverside v. McLaughlin (1991) 500 U.S. 44, 58–59.) (No such

requirement applies if the arrestee is released from detention. (In re Walters

(1975) 15 Cal.3d 738, 743; see also Pen. Code, § 849, subd. (a).)) By contrast,

defendant notes, in California it has typically taken much longer—at the time of

briefing, an average of 30 days—to generate an identification profile from an

arrestee’s DNA sample. (See King, supra, 569 U.S. at p. 454 [citing the same

statistic].) Defendant argues that in view of the delays already associated with

sample processing, it would pose a negligible burden for officials to postpone

processing until a judge has determined whether probable cause exists and a

prosecutor has decided whether to file charges.

Defendant’s point about average processing times is not one that escaped

the high court’s notice in King; as noted, the court itself cited the same numbers.

The court nevertheless concluded that DNA identification is a reasonable booking

procedure, without suggesting that its reasonableness might vary depending on

average processing times. The reasons for this are not difficult to discern. For one

thing, individual DNA samples may be processed more quickly than average: The

court noted the states’ submission that some DNA identification samples in

California have been processed significantly more quickly than others. (King,

supra, 569 U.S. at p. 454.) Moreover, as is often the case in areas of fast-moving

technological developments, average processing times are liable to change; the

high court had been told that the technological capacity already exists to analyze

DNA samples in a matter of minutes, rather than days or weeks, and that

technology is likely to become more widespread in the near future. (Id. at p. 460;

21

see Rapid DNA Act of 2017, Pub.L. No. 115-50 (Aug. 18, 2017) 131 Stat. 1001;

see also 42 U.S.C. §§ 14131(a), 14135a.) The court “[took] account of these

technical advances” (King, at p. 460) in evaluating the reasonableness of DNA

collection and testing as a means of “prompt identification” (id. at p. 459). Given

all this, we cannot proceed on the assumption that a rule delaying the collection or

processing of samples until after a judicial probable cause finding or arraignment

would pose no meaningful risk of interference with the central interest identified

in King: the accurate identification of arrestees who are taken into police custody.

Defendant argues, not unreasonably, that we should decide this case in light

of the conditions that prevailed at the time he refused to provide the sample, not in

light of technological advances that might make it possible to process DNA

samples more quickly in the future. But considering the matter from this vantage

point does not help defendant’s case. If we assume that defendant’s sample would

not have been processed significantly faster than the average of 30 days, as

defendant would have us do, then we would also be bound to conclude that

defendant would have, de facto, received the very delay he seeks: The record

indicates that a judge found probable cause to support defendant’s felony arrest a

little more than 24 hours after he was arrested, and he was arraigned within 48

hours, as the law requires. In a world of 30-day processing times, defendant’s

sample would not have been processed, or his DNA profile uploaded to the state

DNA databank, before these events occurred.

Although defendant himself was charged and convicted, we acknowledge

defendant’s concern about the collection of DNA samples from other individuals

who are booked into custody but who ultimately will never be charged with a

qualifying crime, or against whom qualifying charges will ultimately be dismissed.

Voters responded to that concern by providing for a particular remedy—

expungement of the DNA sample and associated records—when the suspect is

22

cleared of qualifying charges. As King illustrates, voters could also have chosen

to require that all sample processing be postponed until after arraignment,

regardless of technological capacity to proceed more quickly. But given the basic

logic of King, we cannot say that the choice voters made is one that undermines

the reasonableness of the search in this case.

Justice Liu suggests that for purposes of deciding reasonableness of an

arrestee’s search, an arrest should not be considered valid until there has been a

judicial determination of its validity. (Dis. opn. of Liu, J., post, at pp. 1–2.) There

is, however, a meaningful difference between the requirement of a valid arrest and

a requirement that a neutral magistrate make such a determination. For example,

in the related context of searches incident to arrest—where a valid arrest is also

essential—there is no such preapproval requirement. (See United States v.

Robinson (1973) 414 U.S. 218, 219–224 [approving search of the person at time of

valid arrest made without warrant]; People v. Brisendine (1975) 13 Cal.3d 528,

532–534 (Brisendine) [approving search for weapons upon a warrantless arrest,

under circumstances requiring prolonged proximity to arrestees].) The arrestee

may have an exclusionary remedy if the arrest is later determined to have been

illegal (see 6 LaFave, Search and Seizure (5th ed. 2012) § 11.4(d), pp. 407–408),

but the search’s reasonableness does not depend on prior judicial authorization for

the arrest. Here, there is no dispute that the arrest was valid. To the extent the

dissenting opinions argue for a prophylactic rule delaying the analysis of an

arrestee’s DNA sample until probable cause for the arrest has been judicially

determined, we again note that defendant raised no such argument in the trial court

and we decline to decide the constitutional necessity of such a rule in a case in

which probable cause has never been contested.

This brings us to defendant’s final point, concerning the adequacy of the

DNA Act’s expungement procedures. As defendant notes, under the Maryland

23

law at issue in King, an arrestee who is later exonerated is entitled to automatic

destruction of his or her DNA sample and associated records. (King, supra, 569

U.S. at pp. 443–444.) Under the DNA Act, by contrast, an exonerated arrestee

ordinarily must file a written request for expungement of DNA records. (Pen.

Code, § 299, subds. (a) & (b).)5 Provisions of the Act can be read to suggest,

moreover, that a trial court may not act on such a request before 180 days have

elapsed, and the court has unreviewable discretion to grant or deny the request.

(Id., subd. (c)(1) & (c)(2)(D).) Defendant argues that these provisions, by contrast

to Maryland’s automatic destruction provisions, mean that a DNA profile can be

generated and maintained in the state database even after a suspect’s arrest has

been found to be mistaken or unlawful. What is more, he argues, the provisions

make it possible for the state to retain the DNA sample and associated records for

an extended period of time—perhaps even indefinitely—after the prosecutor has

declined to file or has dismissed charges, or after those charges have failed to yield

a conviction. In sum, defendant argues, the DNA Act’s expungement provisions

are insufficient to protect the privacy rights of felony arrestees who are later found

to have been wrongly arrested or who are cleared of wrongdoing.

King does not speak directly to the issue defendant raises concerning the

adequacy of the DNA Act’s expungement procedures. Although the high court

mentioned Maryland’s automatic destruction provisions in passing, it attached no

significance to them in its constitutional analysis. (King, supra, 569 U.S. at

pp. 443–444.) Rather, the court responded to privacy concerns about the state’s

5 A different provision of the DNA Act requires the Department of Justice

DNA Laboratory to “remove [a] suspect sample from its databank files and

databases” after two years upon confirmation that the “person is no longer a

suspect in a criminal investigation.” (Pen. Code, § 297, subd. (c)(2).) The parties

have not addressed the relevance of this provision, if any.

24

processing of DNA samples by emphasizing features of the Maryland law that are

shared by California’s: namely, the analysis of a sample involves the processing

only of loci from “noncoding parts of the DNA that do not reveal the genetic traits

of the arrestee,” and the law strictly prohibits the misuse of DNA records for any

purpose other than identification. (Id. at p. 464; see id. at p. 465; Pen. Code,

§ 299.5.)

The court’s failure to mention the expungement provisions does not

necessarily mean that they are irrelevant to the constitutional analysis, however.

To be sure, the retention of an arrestee’s fingerprints, photographs, and other

identifying information in law enforcement files generally has not been thought to

raise constitutional concerns, even though the arrestee may later be exonerated.

(Loder v. Municipal Court (1976) 17 Cal.3d 859, 864–869; People v. McInnis

(1972) 6 Cal.3d 821, 826.) But the question defendant raises is whether, given the

uniquely sensitive nature of DNA information, a different rule should apply here:

one that calls not only for expungement, but for automatic expungement of an

arrestee’s DNA sample, DNA identification profile, or both after an arrest has

been shown to be invalid or after an arrestee is cleared of charges, or both.

Whether the Fourth Amendment requires this added protection for the

wrongly arrested or exonerated is, however, a question we must leave for another

day, because defendant in this case is neither. Defendant has not been found to

have been wrongly arrested; indeed, he has never challenged the validity of his

arrest. Nor was he cleared of the charges that formed the basis for his arrest; he

was promptly charged with that offense and was later convicted as charged.

Although our dissenting colleagues argue otherwise (dis. opn. of Liu, J., post, at

pp. 7–8; dis. opn of Cuéllar, J., post, at pp. 25–26), we are aware of no support for

the proposition that an arrestee who, like defendant, has never claimed to be

entitled to expungement, is nevertheless entitled to challenge the adequacy of

25

expungement procedures. (See Mitchell, supra, 652 F.3d at p. 412 [arrestee who

had never provided a sample and who had never sought expungement was “not in

a position” to challenge the adequacy of the expungement provisions of the federal

DNA collection statute].)

Again, the ordinary rule is “that one will not be heard to attack a statute on

grounds that are not shown to be applicable to himself.” (Cregler, supra, 56

Cal.2d at p. 313.) Further, “a court will not consider every conceivable situation

which might arise under the language of the statute and will not consider the

question of constitutionality with reference to hypothetical situations.” (Ibid.) By

focusing on the facts presented by the case before us, we avoid premature

judgment of constitutional questions, including “ ‘premature interpretatio[n] of

statutes’ on the basis of factually bare-bones records.” (Sabri, supra, 541 U.S. at

p. 609, quoting United States v. Raines (1960) 362 U.S. 17, 22.)

Restraint is particularly warranted here because much of defendant’s

argument depends on assertions about the workings of the expungement

procedures that are as yet untested and unproved. The record before us reveals

nothing, for example, about how the expungement provisions operate in a case in

which a judge finds no probable cause to support the arrest. The statute does make

clear that a person who is found to have been wrongly arrested is entitled to

expungement: it says that “a person who has no past or present qualifying

offense” may make a request for expungement if, among other things, no

qualifying charges have been filed “within the applicable period allowed by law”

or if qualifying charges “have been dismissed prior to adjudication by a trier of

fact.” (Pen. Code, § 299, subd. (b)(1).) But the requirement that the arrestee make

a written request with supporting documentation from the court or the district

attorney, for example, appears to be aimed at dispelling any doubt as to whether

qualifying charges may still be filed against the arrestee. (Id., § 299, subd.

26

(c)(2)(B).) It is unclear whether or how this requirement would apply in a case in

which a judge has ruled from the outset that the defendant’s felony arrest was

unsupported by probable cause.

Much the same is true about defendant’s concern that the state may

indefinitely retain DNA information of a person who, though arrested, has been

found innocent of any crime. Defendant contends that a prosecutor may

unilaterally block expungement by objecting for any reason, and a trial court

likewise may deny expungement in its unconstrained discretion. It is not clear that

he is correct on either score. It is true that the DNA Act describes a process that

permits prosecutors to file objections to expungement (Pen. Code, § 299, subd.

(c)(2)(D)), and speaks of trial court “discretion” to grant or deny an expungement

request (id., § 299, subd. (c)(1)). But the DNA Act also provides that if there is no

other legal basis for retaining the information, an exonerated arrestee “shall have

his or her DNA specimen and sample destroyed and searchable database profile

expunged from the databank program.” (Pen. Code, § 299, subd. (a), italics

added.) Federal law likewise provides that a state participating in CODIS “shall

promptly expunge” from that database the DNA profile of any person who is later

cleared of qualifying charges. (34 U.S.C. § 12592(d)(2)(A).) And to the extent

there is any question about the proper interpretation of the statute, it might well be

resolved by reference to the usual rule that a statute will be interpreted to avoid

serious constitutional questions if such an interpretation is fairly possible. (See,

e.g., People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) Whether legislation may

deprive the appellate courts of all modes of reviewing a trial court’s order, as

section 299, subdivision (c)(1) might appear to do, poses such a question. (See

Cal. Const., art VI, §§ 10, 11 [jurisdiction of appellate courts over appeals and

writs]; Leone v. Medical Board (2000) 22 Cal.4th 660, 668 [Legislature may not

27

restrict appellate review in a manner that would substantially impair courts’

constitutional powers].)

Nor does a trial court order appear to be a necessary prerequisite to

expungement. As the Attorney General points out, the California Department of

Justice has created a “streamlined” process whereby eligible individuals may seek

expungement directly from the Department, using a publicly available two-page

form.6 Defendant does not question the Department’s authority to create this

alternative, “streamlined” expungement process. (See Pen. Code, § 295, subd.

(h)(1) [authorizing the Department to adopt policies and enact regulations for the

implementation of the DNA Act].) And although he notes that a trial court might

have to get involved if the Department denies a valid expungement request, he

points to no case in which such a thing has occurred.

Because defendant never sought expungement—and indeed, has never

claimed to be entitled to seek expungement, since he was both charged with and

ultimately convicted of a qualifying crime—we have no occasion here to resolve

any questions that might arise about the implementation of the expungement

provisions in other cases. It suffices to note that many of defendant’s assertions

about the operation of the expungement process are, at this point, necessarily

speculative. This court ordinarily does not issue constitutional rulings based on

speculation, and we will not do so here. (See, e.g., Cregler, supra, 56 Cal.2d at

6 California DOJ, Streamlined DNA Expungement Application Form,

<http://ag.ca.gov/bfs/pdf/expungement_app.pdf > [as of Apr. 2, 2018]. As the

Attorney General notes, the Frequently Asked Questions page on the DOJ website

indicates that the expedited expungement process is generally completed within

two to four weeks. (See <https://oag.ca.gov/bfs/prop69/faqs#retention> [as of

Apr. 2, 2018].)

28

p. 313; Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d

158, 172.)7

In short, although the DNA Act differs in some ways from the Maryland

law at issue in King, none of those differences affects the Fourth Amendment

analysis in the specific case before us. King holds that a cheek swab is a

reasonable booking procedure for individuals who are arrested for serious

offenses, and defendant was asked to provide a cheek swab upon being booked

after a valid arrest for a serious offense. Defendant’s conviction for failing to

submit a sample of his DNA therefore did not violate the Fourth Amendment to

the federal Constitution.

7 As Justice Cuéllar notes in his dissent (post, pp. 29–30), after we granted

review in this case, the Legislature enacted versions of Penal Code sections 298

and 299 to become operative were this court to affirm the Court of Appeal’s

decision below. These include provisions for more automatic expungement and

for delay in analyzing samples until probable cause for the arrest has been

judicially determined. (Stats. 2015, ch. 487, §§ 3, 5.)

It goes without saying that our job is not to decide which version of the

statute we prefer, but instead to determine whether the DNA Act, as enacted by

California voters, is constitutional as applied to defendant in the case before us.

The legislative amendments themselves make this clear. The Legislature did not

attempt to substitute these statutory provisions for those the voters approved;

whether it could do so, consistent with its role under Proposition 69, is therefore a

question not presented here. (See Prop. 69, supra, § V, subd. (c) [amendments

may be made only “to enhance the use of DNA identification evidence for the

purpose of accurate and expeditious crime-solving and exonerating the

innocent”].) The Legislature instead enacted the provisions as a kind of fallback

measure, providing that the amendments would come into force only if we affirm

the lower court’s ruling as to the statutory sections’ unconstitutionality as applied

in this case (presumably on a basis that would not equally undermine the validity

of the Legislature’s conditional amendments). We accordingly focus solely on the

law as the voters enacted it, as applied to the facts of the case before us.

29

III.

Defendant argues, and the Court of Appeal concluded on remand from

King, that even if requiring him to furnish a DNA sample as part of the booking

process did not violate the Fourth Amendment, it violated the parallel prohibition

on unreasonable searches and seizures in article I, section 13 of the California

Constitution.

We evaluate the constitutionality of searches and seizures under our state

Constitution by employing the same mode of analysis that the high court applied

in King, supra, 569 U.S 435. That is, we determine whether the intrusion on the

defendant’s expectation of privacy is unreasonable by applying “a general

balancing test ‘weighing the gravity of the governmental interest or public concern

served and the degree to which the [challenged government conduct] advances

that concern against the intrusiveness of the interference with individual liberty.’ ”

(Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 29–30, quoting

Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1338.) Defendant does not argue

otherwise. He instead argues that we should reject King’s balancing of these

interests as a matter of state constitutional law.

In addressing defendant’s argument, we reaffirm several long-established

principles. First, the California Constitution is, and has always been, “a document

of independent force” (American Academy of Pediatrics v. Lungren (1997) 16

Cal.4th 307, 325) that sets forth rights that are in no way “dependent on those

guaranteed by the United States Constitution” (Cal. Const., art. I, § 24). “As an

historical matter, article I and its Declaration of Rights was viewed as the only

available protection for our citizens charged with crimes, because the federal

Constitution and its Bill of Rights was initially deemed to apply only to the

conduct of the federal government.” (Raven v. Deukmejian (1990) 52 Cal.3d 336,

352–353.) While the setting changed following ratification of the Fourteenth

30

Amendment to the United States Constitution and the selective incorporation of

the Bill of Rights, it remains a basic tenet of our system of federalism that “the

nation as a whole is composed of distinct geographical and political entities bound

together by a fundamental federal law but nonetheless independently responsible

for safeguarding the rights of their citizens.” (Brisendine, supra, 13 Cal.3d at

p. 550.)

Second, although decisions of the United States Supreme Court interpreting

parallel federal text are not binding, we have said they are “entitled to respectful

consideration.” (People v. Teresinski (1982) 30 Cal.3d 822, 836 (Teresinski); cf.,

e.g., Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 [“[C]ogent reasons must

exist before a state court in construing a provision of the state Constitution will

depart from the construction placed by the Supreme Court of the United States on

a similar provision in the federal Constitution.”].) This approach reflects the

“respect due to the decision of that high tribunal, the fact that to it has been

committed, by the consent of the states, the ultimate vindication of liberty and

property against arbitrary and unconstitutional state legislation.” (People v. Budd

(1889) 117 N.Y. 1, 13, affd. Budd v. New York (1892) 143 U.S. 517, cited in

Gabrielli, supra, 12 Cal.2d at p. 89.)

We have had several occasions to address the application of these principles

in the context of search and seizure law in particular. Today, following a 1982

state constitutional amendment passed by voter initiative, the United States

Supreme Court’s interpretation of the Fourth Amendment is often not only

persuasive, but controlling in criminal cases: Under Proposition 8, the “Right to

Truth-in-Evidence” (Cal. Const., art. I, § 28, subd. (f)(2)), added by voters in

1982, the exclusionary rule does not apply to a search or seizure that violates

article I, section 13, but does not violate the Fourth Amendment, and the fruits of

such a search or seizure are admissible in a criminal trial. This means that in

31

California criminal proceedings, issues related to the suppression of evidence

seized by police are, in effect, governed by federal constitutional standards. (E.g.,

People v. Lenart (2004) 32 Cal.4th 1107, 1118; see In re Lance W. (1985) 37

Cal.3d 873, 891 [upholding Proposition 8].) But when voters later enacted an

initiative measure that would have eliminated this court’s ability to independently

construe the California Constitution’s provisions granting certain rights to criminal

defendants, including the right to be free of unreasonable searches and seizures,

we explained that such far-reaching change could be accomplished only by

constitutional revision: While our law has long reflected a “general principle or

policy of deference to United States Supreme Court decisions,” the initiative

measure could not “mandate the state courts’ blind obedience thereto, despite

‘cogent reasons,’ ‘independent state interests,’ or ‘strong countervailing

circumstances’ that might lead our courts to construe similar state constitutional

language differently from the federal approach.” (Raven v. Deukmejian, supra, 52

Cal.3d at p. 353.)8

Even before the passage of Proposition 8, this court ordinarily resolved

questions about the legality of searches and seizures by construing the Fourth

Amendment and article I, section 13 in tandem. (E.g., People v. Triggs (1973) 8

8 Our colleagues in dissent would go further; they argue that we should take

no special account of the federal high court’s interpretation of language common

to the United States and California Constitutions. (See dis. opn. of Liu, J., post,

pp. 11–12; dis. opn. of Cuéllar, J., post, pp. 4–5.) But as Raven v. Deukmejian

made clear in rejecting an effort to eliminate our independent interpretive

authority altogether, the approach we have described is neither a relic of a long-

distant past nor a recent innovation. We will accordingly follow this court’s long-

standing policy and practice of giving meaningful and careful consideration to

federal high court decisions construing parallel constitutional text, without in any

way denying or denigrating our power and duty to depart from those decisions

when sufficient reasons appear.

32

Cal.3d 884, 892, fn. 5 [“At least since the advent of Wolf v. Colorado (1949) 338

U.S. 25, we have treated the law under article I, section 19 [now section 13], of

our state Constitution as ‘substantively equivalent’ to the Supreme Court’s

construction of the Fourth Amendment.”].) On various occasions, however, this

court has also decided questions pertaining to the legality of searches and seizures

solely under article I, section 13, when the United States Supreme Court had not

yet decided the parallel question under the Fourth Amendment. (See, e.g., People

v. Ruggles (1985) 39 Cal.3d at 1, 11 [“Rather than await more definitive guidance

[from the United States Supreme Court], we turn to article I, section 13 of the

California Constitution”]; People v. Cook (1985) 41 Cal.3d 373, 376, fn. 1

[similar].) And on some of those occasions, the high court later spoke to the

question and reached a contrary conclusion under the Fourth Amendment. We

have then been confronted with the question whether to adhere to our own

precedent construing article I, section 13, as a matter of stare decisis, or instead to

abandon our precedent in favor of the high court’s decision. (See Brisendine,

supra, 13 Cal.3d at p. 552 [adhering to People v. Superior Court (Simon) (1972) 7

Cal.3d 202, notwithstanding the United States Supreme Court’s later decision in

United States v. Robinson, supra, 414 U.S. 218]; People v. Cook (1978) 22 Cal.3d

67, 88 [adhering to the rule of Theodor v. Superior Court (1972) 8 Cal.3d 77,

notwithstanding the United States Supreme Court’s later decision in Franks v.

Delaware (1978) 438 U.S. 154].)

Here, in contrast to many of our earlier cases, the United States Supreme

Court has resolved the question before us under the Fourth Amendment. The

question is thus not whether we should abandon our own contrary precedent, and

any reliance interests that may have grown up around it, but whether we should

33

reject the high court’s Fourth Amendment guidance.9 Confronted with a similar

situation in Teresinski, in which this court’s Fourth Amendment ruling had been

overturned by the United States Supreme Court in United States v. Crews (1980)

445 U.S. 463, we declined an invitation to reach the same conclusion based on

article I, section 13, finding “no reasons . . . to justify rejecting the teaching of the

Supreme Court” on the issue presented. (Teresinski, supra, 30 Cal.3d at p. 836.)

The question is whether adequate reasons are present here to conclude, despite

King, that California voters exceeded constitutional bounds in mandating the

collection of DNA sample from an individual arrested and booked on probable

cause to believe he had committed a serious offense.

Defendant argues there are several such reasons. To begin with, he argues

that King should be rejected because its central premise is faulty. King concluded

that DNA collection from persons arrested for serious offenses serves a legitimate

governmental interest in safely and accurately processing and identifying the

persons they take into custody. Defendant argues, however, that arrestee DNA

information is not used to determine an arrestee’s identity, but “solely for

investigation of possible other crimes.” Echoing the dissenting opinion in King

(supra, 569 U.S. at pp. 467–469 (dis. opn. of Scalia, J.)), defendant argues that

9 The dissenting opinions ask why “the order in which this court decides an

issue vis-à-vis the high court” should be of any significance. (Dis. opn. of Cuéllar,

J., post, at p. 8; see also dis. opn. of Liu, J., post, at p. 12.) In reviewing this

court’s past practice, our answer is straightforward: in instances where this court

had previously decided an issue, that decision carried the persuasive force of stare

decisis we always accord our own precedents, which had then to be balanced

against the persuasive force of the contrary United States Supreme Court decision.

In instances where we had not previously decided an issue, no similar

counterbalance existed.

34

gathering DNA information for this purpose is unreasonable in the absence of a

warrant or individualized suspicion.

In evaluating defendant’s argument, we do not write on a blank slate. As

noted, in Robinson, supra, 47 Cal.4th 1104, this court upheld against a Fourth

Amendment challenge the practice of mandatory collection of DNA samples from

convicted felons. This court so held precisely because of the capacity of DNA

sampling to provide accurate and reliable identification of criminal offenders.

This court recognized that DNA samples, like fingerprints, may also be used to

establish a suspect’s involvement in crimes. (Id. at pp. 1120–1121.) Indeed, the

DNA sample taken from the defendant in Robinson was used for that purpose, and

led to his prosecution for an unrelated crime. But this court concluded that the

search was reasonable because DNA testing is, like fingerprinting, a means of

identification, and “individuals in lawful custody cannot claim privacy in their

identification.” (Id. at p. 1121.)

Robinson, like King, recognized that suspects can change their names,

assume a false identity using forged documents, change their hair color, have

tattoos removed, have plastic surgery, and change their eye color with contact

lenses. But it is impossible to alter a DNA profile. Thus, as Robinson explained,

“ ‘for purposes of identifying “a particular person” as the defendant, a DNA

profile is arguably the most discrete, exclusive means of personal identification

possible.’ ” (Robinson, supra, 47 Cal.4th at p. 1134, quoting State v. Dabney

(Wis. 2003) 663 N.W.2d 366, 372.) “ ‘ “A genetic code describes a person with

far greater precision than a physical description or a name.” ’ ” (Ibid.) For that

reason, this court upheld an arrest warrant describing the arrestee by only his DNA

profile. (Robinson, at p. 1137.)

California law, like federal law, has also recognized that identification of

arrestees is not an end in itself; rather, the primary purpose of identification is to

35

facilitate the gathering of information about the arrestee contained in police

records, which in turn informs decisions about how to proceed with the arrestee.

(Loder v. Municipal Court, supra, 17 Cal.3d at pp. 866–867 [upholding limited

retention and use of arrest records, including fingerprints and other identifying

information].) Our law is thus consistent with the high court’s observation that

“[t]he task of identification necessarily entails searching public and police records

based on the identifying information provided by the arrestee to see what is

already known about him.” (King, supra, 569 U.S. at p. 451.) “In this respect the

use of DNA for identification is no different than matching an arrestee’s face to a

wanted poster of a previously unidentified suspect; or matching tattoos to known

gang symbols to reveal a criminal affiliation; or matching the arrestee’s

fingerprints to those recovered from a crime scene. . . . [DNA testing] uses a

different form of identification than a name or fingerprint, but its function is the

same.” (Ibid.)

As counsel confirmed at oral argument, defendant does not dispute that it is

reasonable for officers to check an arrestee’s fingerprints against “electronic

databases of known criminals and unsolved crimes.” (King, supra, 569 U.S. at

p. 451.) This, he says, is because fingerprints are capable of serving a “genuine”

identification purpose, while a DNA profile is not. To be sure, a DNA profile is

not, at least under present technological conditions, generated immediately or

nearly immediately, in the manner of fingerprints. But as the high court noted in

King, the immediate availability of fingerprints for identification purposes is also a

relatively recent development; before the FBI introduced its electronic fingerprint

database in 1999, processing fingerprint submissions often took “ ‘weeks or

months.’ ” (Id. at p. 459.) Such delays have not been thought to undermine the

basic identification purposes of the information. (See, e.g., United States v. Kelly

(2d Cir. 1932) 55 F.2d 67, 69, 70 [“Finger printing seems to be no more than an

36

extension of methods of identification long used in dealing with persons under

arrest for real or supposed violations . . . .” “It can really be objected to only

because it may furnish strong evidence of a man’s guilt.”].)

As the high court explained in King, “[t]he question of how long it takes to

process identifying information obtained from a valid search goes only to the

efficacy of the search for its purpose of prompt identification, not the

constitutionality of the search.” (King, supra, 569 U.S. at p. 459.) Even if a DNA

profile is not generated until weeks or months after the initial booking, the

information it yields about the arrestee and his criminal history can still have an

“important bearing” on the processing of the arrestee—whether, for example, to

revisit an initial determination to release the arrestee or to impose new release

conditions. (Id. at p. 460.) Information obtained after initial booking may also

influence the jailer’s decision about where to house the arrestee.

To the extent defendant means to argue that fingerprinting simply makes

DNA identification superfluous, we have no adequate basis for concluding that is

so. Fingerprinting and DNA identification are not simply substitutes for one

another. (Robinson, supra, 47 Cal.4th at p. 1134.) Fingerprinting alone would not

have revealed, for example, that there was an outstanding warrant for the

defendant’s arrest in Robinson. And as the court in King noted, “[i]n considering

laws to require collecting DNA from arrestees, government agencies around the

Nation found evidence of numerous cases in which felony arrestees would have

been identified as violent through DNA identification matching them to previous

crimes but who later committed additional crimes because such identification was

not used to detain them.” (King, supra, 569 U.S. at p. 454.)

Defendant also argues that we should reject King as a matter of state

constitutional law because King “ignored the highly sensitive nature of the genetic

data contained in the collected DNA,” and “did not address what federal circuit

37

courts have recognized as the more significant privacy implications posed by the

state’s subsequent analysis and retention of the sensitive information contained in

DNA.” The criticism is misplaced. Contrary to defendant’s characterization, the

court in King recognized that the privacy interests at stake extended beyond the

“minimally invasive” physical collection of the DNA sample by buccal swab.

(King, supra, 569 U.S. at p. 460.) As noted above, the court acknowledged

concerns about the genetic information contained in the collected DNA and its

subsequent analysis. It explained that CODIS testing is designed to reveal nothing

more about the arrestee than his or her identity, and that state law forbade the use

of DNA information for nonidentification purposes. (Id. at pp. 464–465.) But the

court acknowledged that if scientific advances or other developments mean that

CODIS testing will now lead to discovery of personal medical information, a new

Fourth Amendment analysis will be required. (Ibid.)

We, too, are mindful of the heightened privacy interests in the sensitive

information that can be extracted from a person’s DNA. These interests implicate

not only article I, section 13, but the privacy rights enjoyed by all Californians

under the explicit protection of article I, section 1 of the California Constitution.

(See, e.g., Lewis v. Superior Court (2017) 3 Cal.5th 561, 569.) But our cases have

also recognized that safeguards against the wrongful use or disclosure of sensitive

information may minimize the privacy intrusion when the government accesses

personal information, including sensitive medical information. (E.g., id. at

pp. 576–577 [upholding the constitutionality of government access to prescription

drug record database under article I, section 1 of the California Constitution].)

Here, the DNA Act makes the misuse of a DNA sample a felony, punishable by

years of imprisonment and criminal fines. (Pen. Code, § 299.5.) These strong

sanctions substantially reduce the likelihood of an unjustified intrusion on the

suspect’s privacy. Like the King court, we acknowledge the possibility that

38

technological change might alter the privacy interests at stake, requiring a new

constitutional analysis. But we are no more inclined than that court to decide

cases on the basis of speculation about future developments that may not come to

pass.

Defendant next argues that this court should reject King because article I,

section 13, gives arrested suspects greater privacy rights than they possess under

the Fourth Amendment. Defendant points to decisions of this court holding that

article I, section 13 forbids officers from conducting so-called “ ‘accelerated

booking search[es]’ ” in the field at the time of arrest (People v. Laiwa (1983) 34

Cal.3d 711, 726–728); from conducting full body searches of arrested suspects

before determining whether they will be cited and released without being booked

(People v. Longwill (1975) 14 Cal.3d 943, 951–952 (Longwill)); and from

conducting searches of personal effects incident to a citation or arrest for a traffic

violation, absent reason to believe the effects contain weapons or contraband

(Brisendine, supra, 13 Cal.3d at pp. 548–552; People v. Norman (1975) 14 Cal.3d

929, 938). In the latter cases, we rejected the rule of United States v. Robinson,

supra, 414 U.S. 218, which, as we described it in Longwill, permits “full body

searches of all individuals subjected to custodial arrest,” as well as their effects,

“regardless of the offense, and regardless of whether the individual is ultimately to

be incarcerated.” (Longwill, supra, 14 Cal.3d at p. 951.)

But what motivated these decisions was not principally a difference in

opinion with the federal courts about the scope of legitimate privacy rights of

persons subject to custodial arrest. California law and federal law alike recognize

that an arrestee has reduced privacy interests upon being taken into police custody,

but that reduced privacy interests do not mean zero privacy interests—which is to

say, “[n]ot every search ‘is acceptable solely because a person is in custody.’ ”

(Riley v. California, supra, 134 S.Ct. at p. 2488, quoting King, supra, 569 U.S. at

39

p. 463.) Rather, the cases on which defendant relies all turn on a different

evaluation of legitimate law enforcement needs when arresting suspects in the

field. As relevant here, this court concluded that the rationales for conducting full

booking searches before a defendant enters custody do not apply to all persons

cited or arrested in the field, since “it is factually demonstrable that a substantial

number of the arrestees will never see the inside of a jail cell.” (Longwill, supra,

14 Cal.3d at p. 951.) In each case, we explained, “the same factors are operative:

the potential harm to the officer if the arrestee is armed justifies a limited weapons

search, but a full booking search is ‘inappropriate in the context of an arrestee who

will never be subjected to that process.’ ” (Id. at p. 950, quoting Brisendine,

supra, 13 Cal.3d at p. 547.)

The question before us, by contrast, does not concern the constitutionality

of a booking search conducted immediately upon arrest, but a booking search

conducted at the time of booking, and justified by an interest in accurate

identification that applies to all persons who are taken into police custody

following a valid arrest for a serious offense. Cases concluding that full booking

searches are inappropriate for arrestees who will never be booked into jail are thus

of limited relevance here.

Finally, defendant argues that even if the differences between the DNA Act

and the law at issue in King do not alter the Fourth Amendment analysis, they

should alter the state constitutional analysis. For reasons already given, these

differences do not change our assessment of the constitutionality of the DNA Act

as applied in defendant’s case. Officials asked defendant for a DNA sample upon

booking, after he was arrested on probable cause for a serious offense, and as he

was entering pretrial detention. Under the circumstances before us, the

requirement was not unreasonable.

40

IV.

Our holding today is limited. The sole question before us is whether it was

reasonable, under either the Fourth Amendment or article I, section 13 of the

California Constitution, to require the defendant in this case to swab his cheek as

part of a routine jail booking procedure following a valid arrest for felony arson.

Because we conclude the requirement was reasonable as applied to defendant, we

hold he is subject to the statutory penalties prescribed in Penal Code section 298.1.

Although defendant was arrested on probable cause for felony arson and

was ultimately convicted of that offense, our dissenting colleagues argue that we

should reach beyond the facts of the case before us to strike down some or all of

the DNA Act’s provisions as they apply to other categories of arrestees. They

argue that we should consider defendant’s reasonable expectations about the use

and retention of his DNA sample at the time of booking, and we should do so from

behind a “veil of ignorance,” treating defendant as though his circumstances were

“indistinguishable” from a suspect who is wrongly or pretextually arrested, or

against whom charges are never brought, or who is ultimately acquitted of any

charged offenses. (Dis. opn. of Cuéllar, J., post, at p. 28; see also dis. opn. of Liu,

J., post, at pp. 1–2.)

In assessing whether the demand for a sample of an arrestee’s DNA was

reasonable under article I, section 13, we agree that it may be appropriate to

consider not only the minimal nature of the physical intrusion associated with a

buccal swab, but the arrestee’s reasonable expectations about what would happen

to the sample after collection. But in so analyzing the arrestee’s choice, we cannot

ignore the safeguards built into the DNA Act: the limited nature of the

information stored in databases on an arrestee (specifically, a numerical profile

describing noncoding parts of the arrestee’s DNA); the legal protections against

possible misuse of the profile or the sample (including felony sanctions for

41

knowing improper use or dissemination); and the availability of procedures for

removing the profile from the database and destroying the sample should the basis

for the arrestee’s inclusion dissipate. We have no record before us to show that

these legal protections would have been violated or proved unworkable had

defendant chosen to comply with the requirement to provide a DNA sample on

booking. And we note, as a purely practical matter, whatever apprehension

defendant might have had about the adequacy of the Act’s protections for

individuals who are found to have been wrongly arrested, for example, would

certainly have been mitigated by his own knowledge of the circumstances of his

arrest. (Here, the record shows that defendant knew from the outset that he had

been apprehended in the act of setting fire to the tires of a police car and

anticipated that he would be prosecuted for his acts, to which he would later

confess at trial. (See fn. 4, ante.)) To be sure, as explained above, defendant was

entitled to the full scope of constitutional protection against unreasonable

searches, despite his arrest on evident probable cause. And had he later found

himself in a position to seek expungement of his sample and profile and found the

statutory procedures inadequate, he would have been entitled to challenge the

retention of his information on that basis.

Not all arrestees will be comparably situated to the defendant in this case.

An individual who, unlike defendant, is arrested in the absence of probable cause

might reasonably anticipate that charges will never be brought and any attempted

prosecution will inevitably fail.10 And such an arrestee may, at least in some

10 Justice Liu (dis. opn., post, at p. 9) invokes language from Florida v.

Bostick (1991) 501 U.S. 429, 437–438, which decided a question of detention in

the context of random police requests to search bus passengers’ luggage. The

point of the cited passage of Bostick is that a person’s knowledge he or she has

something to hide does not convert a consensual encounter into a detention. The

(footnote continued on next page)

42

circumstances, have a valid as-applied challenge to the adequacy of the DNA

Act’s expungement procedures or to application of the Act’s other operative

provisions, in addition to the other remedies available for unlawful arrest. (Cf.

People v. McInnis, supra, 6 Cal.3d at p. 826 [photograph taken pursuant to an

illegal arrest could be shown to a witness asked to identify the perpetrator of a

subsequent crime where there was no evidence the police had “ ‘exploited’ ” the

earlier illegal arrest].) We note that a group of plaintiffs in federal court have

already challenged the law’s application to those who are never charged with any

crime. (See Haskell v. Harris (filed July 18, 2014, N.D.Cal. Civ. Case No. C 09-

04779 CRB, docket #146), Motion to Create Subclasses, p. 1 [seeking certification

of subclass consisting of arrestees compelled to submit samples under DNA Act

“unless they are actually charged with a felony offense”].) We of course take no

view on the merits of any such challenges. We only note them for purposes of

contrast with this case, in which defendant bases his challenge to his misdemeanor

refusal conviction on the potential for constitutional deprivation under

circumstances that are not, in fact, present here.

To entertain defendant’s arguments here would convert our decision in this

case, which concerns only the validity of defendant’s conviction for violation of

Penal Code section 298.1, into the equivalent of facial constitutional review of the

DNA Act as it might be applied to other arrestees. But the DNA Act itself

instructs that the validity of the Act as applied to defendant does not depend on its

(footnote continued from previous page)

passage tells us nothing about how to judge the depth of privacy intrusion

involved in a postarrest demand for a DNA sample based not on the collection of

the sample itself, but based on the likelihood of future use or retention of the

sample under various conditions that did not, in fact, obtain in this case.

43

validity as it might apply to others. (Prop. 69, supra, § V, subd. (b); see p. 6,

ante.) And our jurisprudence likewise counsels us to follow a narrower course.

While “passing on the validity of a law wholesale may be efficient in the abstract,”

the law teaches that we should ordinarily focus on the circumstances before us in

determining whether the work of a coequal branch of government may stand or

must fall. (Sabri, supra, 541 U.S. at p. 609.) We accordingly abide by what has

been called a “ ‘cardinal principle of judicial restraint—if it is not necessary to

decide more, it is necessary not to decide more.’ ” (People v. Contreras (2018) 4

Cal.5th 349, 381.)

In sum: Defendant raises a number of concerns about the potential

application of the DNA Act in other cases involving other, differently situated

arrestees. He also raises concerns that changes in technology might open up new

prospects for using his DNA samples and profiles in ways that are uniquely

invasive of personal privacy. We are mindful of these concerns, and we recognize

that the DNA Act may raise additional constitutional questions that will require

resolution in other cases.

In addressing the concerns defendant has raised here, however, we are also

mindful of our role in reviewing a law duly enacted by California voters in the

exercise of their initiative power. We have often said that “it is our solemn duty to

jealously guard” the initiative power secured by the California Constitution, and

that we accordingly may not strike down voter measures “unless their

unconstitutionality clearly, positively, and unmistakably appears.” (Legislature v.

Eu (1991) 54 Cal.3d 492, 501.) Whatever else this duty might entail, it surely

entails an obligation to avoid invalidating the work of the California electorate on

the ground that “the law would be unconstitutionally applied to different parties

and different circumstances from those at hand.” (Sabri, supra, 541 U.S. at

p. 609; see Cregler, supra, 56 Cal.2d at p. 313.)

44

The judgment of the Court of Appeal is reversed.

KRUGER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

45

DISSENTING OPINION BY LIU, J.

According to today’s opinion, “[t]he sole question before us is whether it was

reasonable, under either the Fourth Amendment or article I, section 13 of the California

Constitution, to require the defendant in this case to swab his cheek as part of a routine

jail booking procedure following a valid arrest for felony arson.” (Maj. opn., ante, at

p. 41, italics added.) This statement of the issue is misleading.

The DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act)

requires collection of DNA from all adult felony arrestees “immediately following arrest”

and requires samples to be “forwarded immediately” to the laboratory for analysis. (Pen.

Code, § 295(i)(1)(A), (C).) Buza was arrested on January 21, 2009. At booking a few

hours later, a police officer requested a cheek swab from Buza under penalty of law.

Buza refused. It was not until the next day, January 22, 2009, that a judge found

probable cause to believe Buza committed arson. On January 23, 2009, the district

attorney filed a complaint charging Buza with arson and related offenses as well as

unlawful refusal to provide a DNA specimen on January 21, 2009 (id., § 298.1,

subd. (a)). The question is whether Buza can be convicted of refusing to provide his

DNA at booking prior to any judicial determination of whether he was validly arrested.

Today’s opinion does not explain why the fact that Buza was found “validly arrested on

probable cause to believe he had committed felony arson, and . . . was promptly charged

with (and ultimately convicted of) that offense” (maj. opn., ante, at p. 15) has any bearing

on whether it was lawful to require him to provide his DNA before any of those

determinations were made.

The court says that a “valid arrest” in this context does not require “a judicial

determination of its validity.” (Maj. opn., ante, at p. 23.) But this assertion, even if true,

does not disturb the main premise of the question presented: For purposes of

constitutional analysis, Buza is no different than any felony arrestee who has not been

charged, convicted, or found by a neutral magistrate to be lawfully detained. This point

is critical because it brings into focus the startling breadth of DNA collection and

retention authorized by the statute. This is not a scheme carefully calibrated to identify

felony offenders. Instead, it can be fairly described as a biological dragnet. As explained

below, and for the reasons stated in Justice Cuéllar’s dissent, the DNA Act violates the

prohibition on unreasonable searches and seizures in the California Constitution.

According to the Office of the Attorney General, there are 200,000 to 300,000

felony arrests in California every year. (Cal. Dept. of Justice, Crime in California 2016

(Aug. 17, 2017) p. 49.) But not all arrests end in convictions; far from it. Here are the

Attorney General’s data on dispositions of adult felony arrests for each year since 2009,

when the DNA Act started requiring all such arrestees to provide DNA samples

immediately upon arrest:

Law

Complaints Dismissed,

Total enforcement Convicted

denied acquitted

releases

# # % # % # % # %

2016 207,022 7,058 3.4 36,588 17.7 25,961 12.5 137,415 66.4

2015 242,460 7,537 3.1 38,733 16.0 33,908 14.0 162,282 66.9

2014 315,782 10,227 3.2 48,235 15.3 39,632 12.6 217,688 68.9

2013 305,503 10,525 3.4 45,273 14.8 36,315 11.9 213,390 69.8

2012 295,465 9,572 3.2 48,029 16.3 35,451 12.0 202,413 68.5

2011 292,231 9,780 3.3 45,988 15.7 40,642 13.9 195,821 67.0

2010 298,647 9,980 3.3 46,054 15.4 40,793 13.7 201,820 67.6

2009 306,170 9,894 3.2 43,317 14.1 45,000 14.7 207,959 67.9

Total 2,263,280 74,573 3.3 352,217 15.6 297,702 13.2 1,538,788 68.0

2

(Id. at table 37, p. 49.) These data show that from 2009 to 2016, nearly one in five felony

arrests did not result in prosecution, and almost one in three — a total of 724,492 arrests

— did not result in a conviction.

Each of those arrests triggered the requirement to provide a DNA sample. Yet the

state has no legal basis for retaining the DNA sample or profile if no charges are filed, if

the charges are dismissed, if the person is acquitted or found not guilty or factually

innocent, or if the conviction is reversed and the case is dismissed, unless there is some

other basis such as a prior offense that qualifies the person for inclusion in the state DNA

database. (Pen. Code, § 299, subds. (a), (b).) The Judicial Council of California,

pursuant to its reporting obligations under Penal Code section 1170.45, has reported that

from 2009 to 2016, between 15 and 20 percent of felony arrestees had no criminal record,

between 14 and 19 percent had one or more prior prison commitments, and around 66

percent had a criminal record with no prior prison commitment (so-called

“ ‘miscellaneous’ ” records), a category that presumably includes arrestees with only

misdemeanor convictions for which DNA collection is not authorized. (See, e.g., Jud.

Council of Cal., Disposition of Criminal Cases According to the Race and Ethnicity of

the Defendant (Sept. 20, 2017) p. 15 (Disposition of Criminal Cases) [15 percent of

felony arrestees in 2016 had no criminal record, 19 percent had one or more prior prison

commitments, 66 percent had miscellaneous records]; Jud. Council of Cal., Disposition

of Criminal Cases According to the Race and Ethnicity of the Defendant (2011) [20

percent of felony arrestees in 2009 had no criminal record, 14 percent had one or more

prior prison commitments, 66 percent had miscellaneous records].) The percentage of

felony arrestees with no prior convictions or only misdemeanor convictions is likely

higher among those who are not charged or not convicted than among felony arrestees

overall. Thus, even assuming that a substantial portion of the 724,492 arrests from 2009

to 2016 that resulted in no conviction involved persons with a prior (or subsequent)

3

qualifying offense, there are tens if not hundreds of thousands of individuals who have

been required to provide DNA samples that the state has no legal basis for retaining.

The statute sets forth a process for expungement, but this process is not adequate

to allay constitutional concerns. In contrast to the automatic expungement provisions of

the state law at issue in Maryland v. King (2013) 569 U.S. 435, 443–444 (King),

California’s DNA Act provides that a person seeking expungement “must send a copy of

his or her request to the trial court of the county where the arrest occurred, or that entered

the conviction or rendered disposition in the case, to the DNA Laboratory of the

Department of Justice, and to the prosecuting attorney of the county in which he or she

was arrested or[] convicted[] or adjudicated, with proof of service on all parties.” (Pen.

Code, § 299, subd. (c)(1).) The Department of Justice “shall destroy” the DNA

specimen, sample, and searchable profile “upon receipt of a court order that verifies the

applicant has made the necessary showing at a noticed hearing, and that includes all of

the following: [¶] (A) The written request for expungement pursuant to this section. [¶]

(B) A certified copy of the court order reversing and dismissing the conviction or case, or

a letter from the district attorney certifying that no accusatory pleading has been filed or

the charges which served as the basis for collecting a DNA specimen and sample have

been dismissed prior to adjudication by a trier of fact, the defendant has been found

factually innocent, the defendant has been found not guilty, the defendant has been

acquitted of the underlying offense, or the underlying conviction has been reversed and

the case dismissed. [¶] (C) Proof of written notice to the prosecuting attorney and the

Department of Justice that expungement has been requested. [¶] (D) A court order

verifying that no retrial or appeal of the case is pending, that it has been at least 180 days

since the defendant or minor has notified the prosecuting attorney and the Department of

Justice of the expungement request, and that the court has not received an objection from

the Department of Justice or the prosecuting attorney.” (Id., subd. (c)(2).)

4

The extensive documentation, notice to multiple parties, judicial hearing, and

additional steps required for expungement place a significant burden on eligible persons,

assuming they are even aware of the process. In addition, although the statute says a

person whose arrest resulted in no charge or conviction “shall have his or her DNA

specimen and sample destroyed and searchable database profile expunged” if the state

has “no legal basis for retaining” them (Pen. Code, § 299, subd. (a)), the statute also says:

“The court has the discretion to grant or deny the request for expungement. The denial of

a request for expungement is a nonappealable order and shall not be reviewed by petition

for writ.” (Id., § 299, subd. (c)(1).) It is not clear what “discretion” the court may

exercise in deciding whether to grant or deny a request, or what remedy is available if the

court denies a valid request. Further, it is not clear what consequence ensues if the state

does not comply with a court order granting a request for expungement. (Id., § 299,

subd. (d) [“Any identification, warrant, probable cause to arrest, or arrest based upon a

databank or database match is not invalidated due to a failure to expunge or a delay in

expunging records.”].)

The Department of Justice has sought to expedite the process by creating a

“Streamlined DNA Expungement Application Form.” (Cal. Dept. of Justice, Proposition

69 (DNA) <https://oag.ca.gov/bfs/prop69> [as of Apr. 2, 2018] [“Remove Your DNA

Sample from the DNA Database”]; cf. 34 U.S.C. § 12592(d)(2) [requiring states to

“promptly expunge” the DNA analysis of qualified persons as a condition of state access

to the DNA index maintained by the FBI].) But the reality is that few DNA samples,

once collected, are ever removed.

The Department of Justice DNA Laboratory publishes monthly reports on the

number of samples added or removed from its inventory as well as historical totals since

the DNA collection program began in 2004. As of February 2018, the DNA Laboratory

had received 2,792,083 DNA samples and had removed 44,314 samples, or 1.6 percent,

since the program began. (Cal. Dept. of Justice, Proposition 69 (DNA)

5

<https://oag.ca.gov/bfs/prop69> [February statistics as of Mar. 28, 2018] [“DNA

Laboratory Monthly Statistics, pdf”].) As of December 2008, the DNA Laboratory had

removed 22,269 DNA samples from its inventory since the program began; these

removals include “Expunged, Removed or Failed Samples, or where a New Sample was

Requested.” (Appellees’ Response to Appellants’ Request for Judicial Notice;

Supplemental Request for Judicial Notice and Supporting Declaration of Daniel J.

Powell, Haskell v. Harris (filed Sept. 20, 2012, 9th Cir. case No. 10-15152) docket #103,

Ex. A, p. 24; see Haskell v. Harris (9th Cir. 2014) 745 F.3d 1269 (en banc).) Even if we

assume that all reported removals are expungements, the total number of expungements

from January 2009, when the current DNA law went into effect, until February 2018

would be only 22,045 — i.e., the difference between 44,314 (the total number of

removals through February 2018) and 22,269 (the total number of removals through

December 2008). This is a small fraction of the large population of individuals since

2009 whose felony arrests have resulted in no charge or conviction, and who have no

other basis for inclusion in the state DNA database. It is questionable whether the vast

majority of people entitled to expungement even know about the process much less know

how to navigate it. Indeed, we have no indication that any responsible official is ever

required to inform an arrestee about the expungement process.

The state’s retention of DNA is troubling not only because of its sheer magnitude

but also because it predictably burdens certain groups. African Americans, who are 6.5

percent of California’s population, made up 20.3 percent of adult felony arrestees in

2016. (U.S. Census Bureau, QuickFacts: California (July 1, 2016)

<https://www.census.gov/quickfacts/CA> [as of Apr. 2, 2018]; Crime in California 2016,

supra, at p. 36.) Yet they comprised 24.3 percent of felony arrestees who were released

by law enforcement or the prosecuting attorney in 2016 before any court disposition.

(Disposition of Criminal Cases, supra, at p. 10.) Non-Hispanic whites, by contrast,

comprised 31.2 percent of felony arrestees but only 27.0 percent of felony arrestees

6

released by law enforcement or the prosecuting attorney. (Crime in California 2016,

supra, at p. 36; Disposition of Criminal Cases, supra, at p. 10.) The fact that felony

arrests of African Americans disproportionately result in no charges or dropped charges

means that African Americans are disproportionately represented among the thousands of

DNA profiles that the state has no legal basis for retaining.

Penal Code section 297, subdivision (c)(2) provides an alternative route for

expungement: “The law enforcement investigating agency submitting a specimen,

sample, or print impression to the DNA Laboratory of the Department of Justice or law

enforcement crime laboratory pursuant to this section shall inform the Department of

Justice DNA Laboratory within two years whether the person remains a suspect in a

criminal investigation. Upon written notification from a law enforcement agency that a

person is no longer a suspect in a criminal investigation, the Department of Justice DNA

Laboratory shall remove the suspect sample from its databank files and databases.

However, any identification, warrant, arrest, or prosecution based upon a databank or

database match shall not be invalidated or dismissed due to a failure to purge or delay in

purging records.” But it is not clear how this process, which relies on the initiative of law

enforcement, is monitored or enforced; the language of the statute, like Penal Code

section 299, expressly contemplates “failure” or “delay” by responsible officials. In any

event, this expungement process may take up to two years after a person’s DNA is sent to

the laboratory, during which time the sample remains available to law enforcement even

if the person was never charged or convicted of a crime.

The court says it need not consider the adequacy of the expungement process

because Buza was “charged with and ultimately convicted of a qualifying crime.” (Maj.

opn., ante, at p. 28.) But the question is whether it was constitutional to require Buza to

provide his DNA after his arrest on January 21, 2009 — before he was charged or

convicted. In answering this question, it certainly matters how his DNA would be

analyzed, used, and retained, and we must address these considerations from the vantage

7

point that existed at the time Buza was required to provide his DNA. (See People v. Gale

(1973) 9 Cal.3d 788, 795 [“ ‘The question of the reasonableness of the officers’ conduct

is determined on the basis of the information possessed by the officer at the time a

decision to act is made.’ ”].) We cannot ignore the (in)adequacy of expungement — the

statute’s only safeguard against overbroad retention — based on the fortuity that Buza

turned out to be guilty. (See McDonald v. United States (1948) 335 U.S. 451, 453 [the

“guarantee of protection against unreasonable searches and seizures extends to the

innocent and guilty alike”].)

In addition, the court says collecting DNA from an arrestee before a judge has

determined the validity of the arrest is analogous to a search incident to arrest, “where a

valid arrest is also essential [and] there is no such preapproval requirement.” (Maj. opn.,

ante, at p. 23.) But a search incident to arrest is justified and limited by the immediate

need to “protect[] arresting officers and safeguard[] any evidence of the offense of arrest

that an arrestee might conceal or destroy.” (Arizona v. Gant (2009) 556 U.S. 332, 339.)

DNA collection upon arrest does not serve any similarly pressing purpose. (Dis. opn. of

Cuéllar, J., post, at pp. 13–14 [it takes around 30 days to generate an identification profile

from an arrestee’s DNA sample].) Moreover, when an arrest is later found invalid by a

neutral magistrate, a search incident to the arrest is deemed unlawful, and the evidence

obtained is subject to suppression. (See People v. Macabeo (2016) 1 Cal.5th 1206,

1219.) The DNA Act does not deem unlawful the collection of DNA pursuant to an

arrest that is later found invalid; such DNA may be retained and used by law enforcement

so long as there is no request for expungement.

The court further contends that “whatever apprehension defendant might have had

about the adequacy of the Act’s protections for individuals who are found to have been

wrongly arrested, for example, would certainly have been mitigated by his own

knowledge of the circumstances of his arrest. (Here, the record shows that defendant

knew from the outset that he had been apprehended in the act of setting fire to the tires of

8

a police car and anticipated that he would be prosecuted for his acts, to which he would

later confess at trial. (See fn. 4, ante.)) . . . . [¶] Not all arrestees will be comparably

situated to the defendant in this case. An individual who, unlike defendant, is arrested in

the absence of probable cause might reasonably anticipate that charges will never be

brought and any attempted prosecution will inevitably fail.” (Maj. opn., ante, at p. 42,

fn. omitted.) This seems to suggest that arrestees who know they are guilty are entitled to

lesser constitutional protection than arrestees who believe they are innocent. Such

reasoning contravenes the fundamental principle that “the ‘reasonable person’ test [in

search and seizure analysis] presupposes an innocent person. See [Florida v. Royer

(1983) 460 U.S. 491, 519, fn. 4] (Blackmun, J., dissenting) (‘The fact that [respondent]

knew the search was likely to turn up contraband is of course irrelevant; the potential

intrusiveness of the officers’ conduct must be judged from the viewpoint of an innocent

person in [his] position’). Accord, [Michigan v. Chesternut (1988) 486 U.S. 567, 574]

(‘This “reasonable person” standard . . . ensures that the scope of Fourth Amendment

protection does not vary with the state of mind of the particular individual being

approached’).” (Florida v. Bostick (1991) 501 U.S. 429, 438.) If we are going to make

the constitutional analysis turn on whether the defendant “knew from the outset” that he

was guilty, then we might as well dispense with much of seizure and seizure law. (See

People v. Schmitz (2012) 55 Cal.4th 909, 947 (conc. & dis. opn. of Liu, J.) [search and

seizure doctrine “is built on cases involving guilty people”].)

I have no doubt that law enforcement is aided by the collection and retention of

massive numbers of DNA profiles, whether those profiles are used to confirm a person’s

identity, to facilitate access to criminal history or other information about a person, or to

help solve unsolved crimes. But if those interests are enough to justify the collection and

retention of DNA from persons who are arrested but not convicted, not charged, or not

even found to be lawfully detained so long as they do not seek expungement, then it is

not that far a step for the state to collect and retain DNA from law-abiding people in

9

general, including anyone who “applies for a driver’s license” or “attends a public

school.” (King, supra, 569 U.S. at p. 482 (dis. opn. of Scalia, J.).) Such broad-based

policies would similarly aid law enforcement while having the virtue of being less

discriminatory in their effects.

Indeed, the court’s analogy to fingerprinting, a less invasive and less powerful

technology, should give us pause. (Maj. opn., ante, at pp. 35–37; see dis. opn. of Cuéllar,

J., post, at pp. 19–22.) State law already requires individuals to provide a fingerprint in

order to get a driver’s license (Veh. Code, § 12800, subd. (c)), to become a school teacher

(Ed. Code, § 44340), to be a professional engineer (Cal. Code Regs., tit. 16, § 420.1), to

be a practicing attorney (Bus. & Prof. Code, § 6054, subd. (b)), or to join many other

occupations (id., § 144 [requiring “a full set of fingerprints for purposes of conducting

criminal history record checks” from applicants to 29 state licensing boards, including

nurses, pharmacists, physicians, court reporters, funeral directors, guide dog instructors,

contractors, and accountants]). These requirements serve important public safety and law

enforcement purposes. But if DNA matching is constitutionally justified by its

unparalleled efficacy in serving the “ ‘same’ ” identification “ ‘function’ ” as

fingerprinting (maj. opn., ante, at p. 36, quoting King, supra, 569 U.S. at p. 451), then it

is not clear what constitutional principle stands in the way of requiring a DNA sample in

every context where the law now requires a fingerprint. (See King, at p. 451 [“the only

difference between DNA analysis and the accepted use of fingerprint databases is the

unparalleled accuracy DNA provides”].) One need not be a diehard civil libertarian to

have serious qualms about where all of this may lead.

I conclude with a few words about the court’s approach to state constitutional

analysis against the backdrop of King. Today’s opinion affirms that “the California

Constitution is, and has always been, ‘a document of independent force’ [citation] that

sets forth rights that are in no way ‘dependent on those guaranteed by the United States

10

Constitution’ (Cal. Const., art. I, § 24).” (Maj. opn., ante, at p. 30.) And the court is

correct that “although decisions of the United States Supreme Court interpreting parallel

federal text are not binding, we have said they are ‘entitled to respectful consideration.’ ”

(Id. at p. 31.) But the court errs in framing the inquiry as “whether adequate reasons are

present here to conclude, despite King,” that the DNA Act is unconstitutional. (Id. at

p. 34.) In analyzing the state constitutional issue, the court takes King as the starting

point and asks “whether we should reject the high court’s Fourth Amendment guidance.”

(Id. at pp. 33–34, fn. omitted.) In so doing, the court appears to accord King “a

presumption of correctness that has no sound basis in our federal system.” (Liu, State

Constitutions and the Protection of Individual Rights: A Reappraisal (2017) 92 N.Y.U.

L.Rev. 1307, 1314.)

“Just as the Supreme Court, when interpreting a provision of the Federal

Constitution, does not accord a presumption of correctness to any state’s interpretation of

an analogous state constitutional provision or even to an interpretation adopted by a

majority of states, there is no reason why a state court, when interpreting a provision of

its state constitution, should accord a presumption of correctness to the Supreme Court’s

interpretation of an analogous federal constitutional provision. State courts should and

often do give respectful consideration to relevant Supreme Court decisions, just as they

often give respectful consideration to relevant decisions of sister states. And state courts

may often be persuaded that the Supreme Court’s approach is correct and worthy of

adoption, just as they may often be persuaded by a majority view among state high

courts. But the crucial point is that state courts, as the ultimate arbiters of state law, have

the prerogative and duty to interpret their state constitutions independently.” (Liu, supra,

92 N.Y.U. L.Rev. at pp. 1314–1315.)

As Justice Cuéllar notes, today’s opinion provides no convincing rationale for why

our analytical approach to a state constitutional issue should depend on “the order in

which this court decides an issue vis-à-vis the high court.” (Dis. opn. of Cuéllar, J., post,

11

at p. 8.) The court’s response is that “in instances where this court had previously

decided an issue, that decision carried the persuasive force of stare decisis we always

accord our own precedents, which had then to be balanced against the persuasive force of

the contrary United States Supreme Court decision. In instances where we had not

previously decided an issue, no similar counterbalance existed.” (Maj. opn., ante, at

p. 34, fn. 9.) But this statement of the obvious misses the point. It does not explain why

our approach should be different (1) when we consider a state constitutional issue of first

impression on which the high court has spoken under federal law, as compared to (2)

when we consider a state constitutional issue of first impression on which the high court

has not spoken under federal law. To be sure, in scenario (1) we should give respectful

consideration to the views of the high court, as well as the views of other state courts that

have decided the issue under their states’ laws. But our duty to interpret the California

Constitution independently is no different in scenario (1) than in scenario (2). We may

decide, in our independent judgment, that the views of the high court should be followed.

But that is different from the mode of analysis in today’s opinion, which accords a

presumption of correctness to the high court’s decision in King and then asks whether

there are “sufficient reasons” to depart from King. (Id. at p. 32, fn. 8.)

Moreover, the court fundamentally missteps in attributing its deferential reading of

King to “ ‘the fact that to [the high court] has been committed, by the consent of the

states, the ultimate vindication of liberty and property against arbitrary and

unconstitutional state legislation.’ ” (Maj. opn., ante, at p. 31.) It is of course true that

the United States Supreme Court serves as a backstop against state infringements on

constitutional rights, and when the high court issues a federal constitutional ruling, state

courts “shall be bound thereby, any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” (U.S. Const., art. VI, cl. 2.) But that is not a reason for state

courts to treat the floor of constitutional rights under federal law as a presumptive ceiling

on constitutional rights under state law. Doing so runs counter to the basic precept that

12

“ ‘ “federalism secures to citizens the liberties that derive from the diffusion of sovereign

power.” ’ ” (Bond v. United States (2011) 564 U.S. 211, 221.) “The Framers concluded

that allocation of powers between the National Government and the States enhances

freedom” (ibid.), and a crucial feature of this freedom-enhancing allocation of powers is

judicial federalism: “state courts no less than federal are and ought to be the guardians of

our liberties” (Brennan, State Constitutions and the Protection of Individual Rights

(1977) 90 Harv. L.Rev. 489, 491). “State courts interpreting state law remain particularly

well situated to enforce individual rights against the States. Institutional constraints, it

has been observed, may limit the ability of [the United States Supreme] Court to enforce

the federal constitutional guarantees. Sager, Fair Measure: The Legal Status of

Underenforced Constitutional Norms, 91 Harv.L.Rev. 1212, 1217–1218 (1978). Prime

among the institutional constraints, [the United States Supreme] Court is reluctant to

intrude too deeply into areas traditionally regulated by the States. This aspect of

federalism does not touch or concern state courts interpreting state law.” (Arizona v.

Evans (1995) 514 U.S. 1, 30–31 (dis. opn. of Ginsburg, J.).) I do not see how deferring

to high court decisions under federal law when we construe parallel provisions of state

law serves the basic purposes of federalism, and the court has no answer on this point.

Notwithstanding today’s opinion, this court is no stranger to the importance of

judicial federalism. In People v. Cahan (1955) 44 Cal.2d 434, we adopted the

exclusionary rule for violations of the state constitutional prohibition on unreasonable

searches and seizures, declining to follow the high court’s refusal to adopt a federal

exclusionary rule in Wolf v. Colorado (1949) 338 U.S. 25. In People v. Wheeler (1978)

22 Cal.3d 258, we held that a prosecutor’s exercise of a racially motivated peremptory

strike in an individual case violates the state constitutional right to be tried by a fair and

impartial jury, declining to follow the contrary federal constitutional rule set forth in

Swain v. Alabama (1965) 380 U.S. 202. And in In re Marriage Cases (2008) 43 Cal.4th

757, we held that laws denying same-sex couples the right to marry violate equal

13

protection under the state constitution, even though the only high court authority on point

at the time, Baker v. Nelson (1972) 409 U.S. 810, had dismissed a similar appeal for want

of a substantial federal question.

In each of these instances, we interpreted the guarantees of our state constitution

without according any deference or presumption of correctness to high court precedent.

And on each of these issues, the high court eventually overruled its precedent and

adopted as a matter of federal law the rule we had adopted as a matter of state law. (See

Mapp v. Ohio (1961) 367 U.S. 643, 651–653 [overruling Wolf and citing Cahan]; Batson

v. Kentucky (1986) 476 U.S. 79, 82–82 & fn. 1 (1986) [overruling Swain and citing

Wheeler]; Obergefell v. Hodges (2015) 576 U.S. __, __, __ [135 S.Ct. 2584, 2605, 2610]

[overruling Baker and citing In re Marriage Cases].) These examples show how the

exercise of independent judgment by state courts in our system of judicial federalism

provides a crucial safeguard for constitutional rights.

Instead of looking to these examples, today’s opinion cites Gabrielli v.

Knickerbocker (1938) 12 Cal.2d 85, which rejected a state constitutional challenge to a

law requiring schoolchildren to salute and pledge allegiance to the flag. (Maj. opn., ante,

at p. 31.) I would not rely on such dubious precedent. Whatever may be said about the

merits of the issue, the court’s analysis in Gabrielli consists of little more than uncritical

acceptance of United States Supreme Court decisions that had rejected similar claims

under the federal Constitution. (See Gabrielli, at p. 89 [“[C]ogent reasons must exist

before a state court in construing a provision of the state Constitution will depart from the

construction placed by the Supreme Court of the United States on a similar provision in

the federal Constitution.”], quoted in maj. opn., ante, at p. 31.) Five years later, the high

court overruled its precedent and decided the issue the other way in West Virginia State

Board of Education v. Barnette (1943) 319 U.S. 624.

In sum, we should not indulge any suggestion that the job of protecting individual

rights in our federal system belongs primarily to the United States Supreme Court or that

14

the high court is invariably better positioned than state supreme courts to discharge that

critical function. Because I do not agree with the court’s analysis of the state

constitutional question presented or its judgment upholding Buza’s conviction for

refusing to provide a DNA sample just hours after his arrest, I respectfully dissent.

Having concluded that Buza’s conviction for refusing to comply with the DNA Act is

invalid under the California Constitution, I express no view on whether it is also invalid

under the Fourth Amendment.

LIU, J.

WE CONCUR:

CUÉLLAR, J.

PERLUSS, J.*

* Presiding Justice of the Court of Appeal, Second Appellate District, Division Seven,

assigned by the Chief Justice pursuant to article VI, section 6 of the California

Constitution.

15

DISSENTING OPINION BY CUÉLLAR, J.

In California people are protected not only by federal constitutional guarantees

against unreasonable searches or seizures, but by state constitutional provisions

governing privacy and prohibiting arbitrary coercion. These protections require

courts to distinguish between routine lawful procedures, such as those governing

collection of biological samples from convicts, and arbitrary commands purporting to

force people who have not been convicted of anything to surrender their most private

information. (See Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct. 2473,

2488] (Riley) [“Not every search ‘is acceptable solely because a person is in

custody.’ ”]; White v. Davis (1975) 13 Cal.3d 757, 766 (White) [“The inherent

legitimacy of the police ‘intelligence gathering’ function does not grant the police the

unbridled power to pursue that function by any and all means. In this realm, as in all

others, the permissible limits of governmental action are circumscribed by the federal

Bill of Rights and the comparable protections of our state Constitution.”].) Yet the

majority today sanctions the collection and analysis of DNA samples from all adults

arrested on felony charges –– fully one-third of all arrestees –– regardless of whether

those individuals will ever be charged with a crime or, if charged, ever convicted. As

Justice Liu explains in more detail, over half of these individuals are released before a

judicial determination of probable cause. But at whatever point the arrestees are

released, their DNA sample stays with the government until the expungement process,

which burdens individuals and is contingent rather than automatic, runs its course if it

ever does.

For all these individuals, the majority provides no protection –– except to

say that if they are exonerated, they may file written requests for the expungement

of their DNA records. In so holding, the majority sidesteps the problems

associated with the collection and expungement procedures of Proposition 69, the

DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act or the

Act). It contends that the scope of the legitimate privacy rights of persons arrested

is no different under our constitution than under the Fourth Amendment to the

federal Constitution and, by implication, that our own constitution plays no role in

determining whether the rights of a California citizen subjected to a search of his

person and collection of his DNA have been violated. I cannot agree.

Our state Constitution provides heightened protections for the privacy

rights of individuals, including arrestees. Those protections do not vanish merely

because someone is arrested. An arrest itself requires probable cause –– but such

cause, however probable, is a far cry from a conviction. Indeed, the underlying

logic of our system of criminal investigation and enforcement is grounded in the

distinction between the relatively low-threshold probable cause determination and

the onerous burden the government must carry to achieve a criminal conviction.

The government may justify a variety of investigative activities without probable

cause –– from routine patrol of a particular geographic location to following up on

tips or information from undercover agents. (E.g., Kyllo v. United States (2001)

533 U.S. 27, 31–32 (Kyllo) [reiterating the “lawfulness of warrantless visual

surveillance of a home”]; Illinois v. Gates (1983) 462 U.S. 213, 227, 243 [holding

that a tip alone did not supply probable cause but the police follow-up

investigation of the tip did].) But when the Act compels the collection of a DNA

sample before a determination of probable cause, the government’s rationale for

seeking DNA samples for all felony arrestees is not sufficiently compelling to

outweigh the intrusion on an arrestee’s privacy that accompanies the collection

2

and storage of his personal genetic information. Though the United States

Supreme Court may have reached a different conclusion when evaluating another

state’s DNA collection statute under the federal Constitution, the role of our state

charter, the unique importance it assigns to privacy, and the differences between

the statute considered in Maryland v. King (2013) 569 U.S. 435 (King) and the

DNA Act involved here all suggest that we should find the implicated provisions

of the Act unconstitutional. So I respectfully dissent.

I.

What the parties in this case have asked us to decide is whether the DNA

Act’s provisions requiring collection from all adult felony arrestees violate article

I, section 13 of the California Constitution. So we begin by considering our state

Constitution, its relationship to the federal charter, and where the two diverge.

Construing a different statute and a different constitution, the high court in

King decided that the Fourth Amendment permits — in some instances —

collections of DNA from adults arrested for serious crimes. (King, supra, 569

U.S. at p. 446.) Although such a decision merits “respectful consideration” when

its analysis is relevant, our own constitution deserves far more than that. In

deciding whether our own state Constitution provides protection against the search

or seizure at issue, we are not only free, but obligated, to perform an independent

analysis. (People v. Teresinski (1982) 30 Cal.3d 822, 835–836 (Teresinski)

[“[T]he California courts, in interpreting the Constitution of this state, are not

bound by federal precedent construing the parallel federal text. . . . [T]he state

courts, in interpreting constitutional guarantees contained in state constitutions, are

independently responsible for safeguarding the rights of their citizens.” (internal

quotation marks omitted)].) Because of our precedent interpreting the scope of

article I, section 13 and the relevance of article I, section 1’s explicit protection of

3

privacy, our constitution is more solicitous of the privacy interests of arrestees

than the Fourth Amendment.

The California Constitution is not some minor codicil to the United States

Constitution. As the majority has no choice but to acknowledge (maj. opn., ante,

at pp. 30–31), our state Constitution is a document of “independent force,” whose

meaning is to be independently distilled and propagated by this court, acting in our

authority as the state court of last resort. (Cal. Const., art. I, § 24 [making explicit

that “[r]ights guaranteed by this Constitution are not dependent on those

guaranteed by the United States Constitution”]; People v. Brisendine (1975) 13

Cal.3d 528, 549–550 (Brisendine) [“the California Constitution is, and always has

been, a document of independent force”]; People v. Longwill (1975) 14 Cal.3d

943, 951, fn. 4 (Longwill) [stating that “in the area of fundamental civil liberties,”

“we sit as a court of last resort” and “our first referent is California law and the

full panoply of rights Californians have come to expect as their due”].) In cases

where the wording of the state constitutional provision at issue parallels a phrase

in the federal Constitution, high court opinions on the subject merit respectful

consideration. (Teresinski, supra, 30 Cal.3d at p. 835.) But any such parallels in

wording must not occlude our state Constitution’s force as the basic charter of

government, which is why it is appropriate in some circumstances to take a

different course in interpreting our state Constitution. (Ibid.)

We have done so in a variety of cases, where we concluded that

California’s Constitution extends protections to our citizens well beyond those the

high court has announced in the federal context. (Raven v. Deukmejian (1990) 52

Cal.3d 336, 353–354 (Raven) [listing the “numerous decisions” from this court

“interpreting the state Constitution as extending protection to our citizens beyond

the limits imposed by the high court under the federal Constitution”]; see also,

Longwill, supra, 14 Cal.3d at pp. 951–952 [holding that our state charter, unlike

4

the federal Constitution, does not allow for carte blanche “full body searches of all

individuals subjected to custodial arrest”]; People v. Maher (1976) 17 Cal.3d 196,

198–203 [concluding, as in Longwill, that “the search of [an arrestee’s] person

beyond the scope of a pat-down was unlawful under article I, section 13, of the

California Constitution”]; People v. Cook (1978) 22 Cal.3d 67, 88 [holding that

because a Supreme Court’s decision “would afford our citizens less protection

than is guaranteed to them under California law,” it is “not to be followed in

California” and that “all challenges to the veracity of a search warrant affidavit in

our courts are to be governed by [our own precedent] and article I, section 13, of

the California Constitution”]; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th

468, 476 [“the marketing order in question does not implicate any right to freedom

of speech under the First Amendment, but does indeed implicate such a right

under article I [of our state Constitution]”].)

What’s more, within the specific context of search and seizure of arrestees,

we have been quite explicit in holding that article I, section 13 provides greater

protection than does the Fourth Amendment. (Brisendine, supra, 13 Cal.3d at pp.

545–546; Longwill, supra, 14 Cal.3d at p. 951 & fn. 4; People v. Norman (1975)

14 Cal.3d 929, 939 (Norman); People v. Ruggles (1985) 39 Cal.3d 1, 9–11

(Ruggles); see also People v. Laiwa (1983) 34 Cal.3d 711, 727 (Laiwa).) In those

cases, we have emphasized that article I, section 13 “requires a more exacting

standard” for search and seizure cases arising in this state. (Brisendine, supra, 13

Cal.3d at p. 545.) We’ve also rejected the notion — which the United States

Supreme Court has embraced — that an individual subject to custodial arrest has

significantly diminished expectations of privacy. (Id. at p. 547 [“we cannot accept

. . . that ‘an individual lawfully subjected to a custodial arrest retains no significant

Fourth Amendment interest in the privacy of his person’ ”].) Even full custodial

arrest, booking, and incarceration do not authorize the police to search an arrestee

5

in the hope of discovering evidence of a more serious crime. (See Laiwa, supra,

34 Cal.3d at pp. 727–728.) What these authorities make clear is as simple as it is

important: individuals placed under arrest enjoy greater protection against

searches of their persons and things under our state Constitution than under the

federal counterpart.

The majority wisely avoids debating such principles. Instead, it seeks to

limit relevance of cases like Brisendine, Longwill, Norman, and Laiwa by

asserting that they all concern “the constitutionality of a [field] search conducted

immediately upon arrest,” and not, as was the case with petitioner Mark Buza, a

search “conducted at the time of booking.” (See maj. opn., ante, at p. 40.) Yet it is

far from clear why it should matter that these authorities concern searches done in

the field. We have not previously imposed limitations on the scope of the

constitutional protections involved that would categorically cleave the rights of

individuals subject to searches in the field from those being compelled to provide

their DNA at the time of booking. And existing distinctions do not detract from

the fact that — in some circumstances — California residents have more robust

rights than equivalent ones available under the federal Constitution. (Brisendine,

supra, 13 Cal.3d at pp. 550–551 [“in determining that California citizens are

entitled to greater protection under the California Constitution against

unreasonable searches and seizures than that required by the United States

Constitution, we are embarking on no revolutionary course”].) The question

facing us is whether we should extend the same greater protection to our citizens

in this situation, not whether we have done that exact thing before.1

1 I would also note that the DNA Act authorizes cheek swabs “immediately

following arrest” and thus encompasses field searches. (Pen. Code § 296.1,

subd. (a)(1)(A).)

6

The majority suggests that we should not do so because the United States

Supreme Court decided King before we considered the issue. It implies that if the

Supreme Court “had not yet decided the parallel question under the Fourth

Amendment,” then we may be empowered to reach our own conclusions. (Maj.

opn., ante, at p. 33.) But because King predated our consideration, our

responsibility shifts from deciding the legality of the search under article I, Section

13 to determining whether “we should reject the high court’s Fourth Amendment

guidance.” (Id. at pp. 33–34.)

Nowhere in the majority opinion is there a persuasive justification for why

the question is framed in terms of whether we should “reject” the United States

Supreme Court’s “guidance.” Of course we consider United States Supreme Court

decisions when they address the scope of a federal constitutional right analogous

to a state right, even if we are not required on federal supremacy grounds to adopt

the same approach. But unlike the majority, we treat our own precedent as worthy

of –– at least –– “meaningful and careful consideration” as well. (Maj. opn., ante,

at p. 32, fn. 8.) Our precedent makes clear that even where the relevant provision

under our state charter shares “language [in] common” with the federal

Constitution, we may interpret our constitution differently than how the high court

reads the federal Constitution. (See Am. Acad. of Pediatrics v. Lungren (1997) 16

Cal.4th 307, 326 (Lungren) [“even when the terms of the California Constitution

are textually identical to those of the federal Constitution, the proper interpretation

of the state constitutional provision is not invariably identical to the federal courts’

interpretation of the corresponding provision contained in the federal

Constitution”].) What’s more, we have said the particular provision at stake here

— article I, section 13 — affords arrestees more expansive protection than does

the Fourth Amendment. The majority relegates our decisions to the sideline in its

rush to adhere to what it calls the high court’s “guidance,” but in fact, treats as

7

controlling authority. In doing so, the majority fails to maintain fidelity to our

caselaw and Constitution.

The position the majority takes is in tension even with its own logic. There

is simply no good reason to believe that the order in which this court decides an

issue vis-à-vis the high court should determine the outcome of our deliberation, or

that we should read our prior cases as supporting some kind of ersatz presumption

that we should ration as much as possible the discussion of state constitutional

rights. The framing is inconsistent with the majority’s purported “reaffirm[ation]”

of “long-established principles” that the rights guaranteed by our state Constitution

“are in no way ‘dependent on those guaranteed by the United States

Constitution.’ ” (Maj. opn., ante, at p. 30.) If the rights of our citizens are not

dependent on the federal Constitution, then our analytical route for determining

what those rights are should not take a different course simply because the United

States Supreme Court issued an opinion before we did.

In replying to our criticism, the majority seeks its answer to the awkward

question of why temporal order matters so much for its analysis in a rationale that

it describes as “straightforward” — so straightforward, in fact, it may be captured

in two words: “stare decisis.” (Maj. opn., ante, at p. 34, fn. 9.) When we have

not spoken, says the majority, the weight of stare decisis does not exist to

counterbalance against the “force of the contrary United States Supreme Court

decision.” (Ibid.) This contention is doubly flawed. First, by positing that

California courts have not spoken, the majority wrongly implies that nothing in

our own precedent weighs as much as even a single federal court decision that’s

not binding on us. Yet as detailed in this section, any reasonable reading of our

past decisions reveals them to be enormously relevant to the question before us.

Second, how the majority decides to frame its inquiry is just as much a

problem. By asking whether we may grant our own courts a permission slip to

8

“depart” from a United States Supreme Court decision addressing a matter that is

no more than partially similar to the case before us, the majority has done more

than to adjust the weight on the state side of the jurisprudential scale relative to the

federal side. It’s dispensing with the scale altogether. Instead of weighing the

relative merits of the issue at hand according to our independent responsibility to

construe our Constitution, the majority appears to deploy words like “depart” and

“guidance” to embrace the view that we should presumptively comply with a

United States Supreme Court opinion that does not even address the precise

question before us. In this new analysis, our own authorities are emaciated in

importance by being read narrowly, such that booking searches are presumed to be

so categorically distinct from field searches that nothing meaningful can be

gleaned for this case from decisions involving the latter. Meanwhile, a far-broader

reading and presumption of validity is reserved for a non-binding United States

Supreme Court decision — even though the decision is interpreting a different

Constitution, and a different DNA collection scheme that does not come close to

applying to all felony arrestees. This position implies that the United States

Supreme Court can dictate what we do whenever we interpret an issue under the

California Constitution, despite our prior decisions supporting a contrary answer,

so long as we have not previously resolved precisely the same question.

Remarkably, this position removes both the “stare” and “decisis” from “stare

decisis” –– inverting the concept to justify departures from California decisions

governing the scope of state privacy protection.

Those decisions underscore how adopting King’s approach would be at

odds with article I, section 1 of California’s Constitution. And it would be at odds

with our case law construing that provision and emphasizing the importance of

informational and dignitary privacy interests under California law. In contrast to

its federal counterpart, the California Constitution contains an express statement

9

about the importance of personal privacy: “All people are by nature free and

independent and have inalienable rights. Among these are enjoying and defending

life and liberty, acquiring, possessing, and protecting property, and pursuing and

obtaining safety, happiness, and privacy.” (Cal. Const., art. I § 1.) True: we have

previously found that article I, section 1 does not by itself confer a privacy right

substantively different from what article I, section 13 purports to protect. (People

v. Crowson (1983) 33 Cal.3d 623, 629.) But neither have we held that this

language is devoid of meaning when considered together with that of article I,

section 13.

The reason we have not so held is because the most sensible reading of the

California Constitution would assign both importance and meaning to its mention

of personal privacy. Even if the language in article I does not create a separate

class of privacy rights, at a minimum this reference underscores how certain

infringements of personal privacy deserve heightened scrutiny in our search and

seizure analysis relative to what the federal analysis requires. Our cases

construing article I, section 1 in relation to the federal Constitution reinforce this

conclusion. What we have emphasized is that the scope of the state constitutional

right of privacy is broader than the concept of privacy the federal courts have

identified — and that this distinction may at times lead us to provide greater

protection for individuals’ privacy rights than the federal courts might. (Lungren,

supra, 16 Cal.4th at pp. 326–327 [“past California cases establish that, in many

contexts, the scope and application of the state constitutional right of privacy is

broader and more protective of privacy than the federal constitutional right of

privacy as interpreted by the federal courts”].)

Our cases have described the “core value” of article I, section 1 as

protecting so-called “informational privacy,” meaning the privacy interest in

sensitive and confidential personal information. (Hill v. National Collegiate

10

Athletic Assn. (1994) 7 Cal.4th 1, 35–36 (Hill); Lungren, supra, 16 Cal.4th at p.

406.) We have found that article I, section 1 grew out of the electorate’s fears of

“increased surveillance and data collection activity in contemporary society”

(White, supra, 13 Cal.3d at p. 774), and was intended to address the potential

collection, stockpiling, and use of individuals’ most personal information in an

arbitrary and unjustified fashion. (Ballot Pamp., Gen. Elec. (Nov. 7, 1972)

argument in favor of Prop. 11, p. 27 (Article I, section 1 Ballot Pamp.) [privacy

initiative targeted the “collecting and stockpiling [of] unnecessary information . . .

and misusing information gathered for one purpose in order to serve other

purposes or to embarrass”].) Article I, section 1 provides special protection for

what we have deemed “autonomy,” or dignitary, privacy, which we have

described as protecting the interest in making “personal decisions or conducting

personal activities without observation, intrusion, or interference.” (Hill, supra, 7

Cal.4th at p. 35.) We have found dignitary privacy to embrace a person’s interest

in retaining control over his or her own body and “bodily integrity.” (Lungren,

supra, 16 Cal.4th at pp. 326–327, 337.) Finally, it has not escaped our attention

that article I, section 1 addresses the unique harms that can occur when the

government intrudes on a person’s privacy. The proponents of the provision

warned of the possibility of the government assembling “personal information”

and referred specifically to the possibility that private information could be

permanently stored in government records. (Article I, section 1 Ballot Pamp.,

supra, at p. 26 [“Government agencies seem to be competing to compile the most

extensive sets of dossiers of American citizens. Computerization of records makes

it possible to create ‘cradle-to-grave’ profiles of every American.”].)

Given the nature of these concerns, the machinery of the DNA Act appears

to epitomize the sort of intrusion relevant under article I, section 1. The collection

of DNA — whether it is via cheek swab or any of the other collection processes

11

the Act permits (see Pen. Code, § 298.1, subd. (b) [permitting the use of

reasonable force to collect DNA database samples]) — violates the subject’s

bodily integrity. (See Hill, supra, 7 Cal.4th at pp. 40–41 [finding that the

collection of a urine sample “impacts legally protected privacy interests”].) And

the use of that sample to create and store a DNA profile gives the government

long-term access to the subject’s genetic code — some of the most personal

information imaginable. (Id. at p. 41 [“ ‘A person’s medical profile [as revealed

by the collection and analysis of urine] is an area of privacy infinitely more

intimate, more personal in quality and nature than many areas already judicially

recognized and protected.’ ”]; Birchfield v. North Dakota (2016) 579 U.S. ___,

___–___ [136 S.Ct. 2160, 2177] (Birchfield) [noting that DNA collection and

analysis “put into the possession of law enforcement authorities a sample from

which a wealth of additional, highly personal information could potentially be

obtained”].) The DNA Act’s processes thus seem to fall close to the heart of

article I, section 1’s scope. Consequently, it is vital to consider article I, section 1

in our independent analysis of the constitutionality of the DNA Act under our state

charter.

Ultimately, the majority’s approach to constitutional federalism fails to do

justice to the importance of state constitutional rights. The majority does not

appear to reject the well-settled principle that “[t]he construction of a provision of

the California Constitution remains a matter of California law regardless of the

narrower manner in which decisions of the United States Supreme Court may

interpret provisions of the federal Constitution.” (People v. Pettingill (1978) 21

Cal.3d 231, 247–248.) Yet it ironically finds that neither our constitution nor case

law offers “adequate reasons” for us to take a fresh look at this case beyond what

it takes to be the long shadow cast by King. (Maj. opn., ante, at p. 34.)

12

The path we are bound to follow is a different one. Instead of relying

primarily on King to yield a tidy solution in this case, we owe it to the citizens of

our state to perform an independent analysis to determine whether “ ‘the particular

governmental invasion of a citizen’s personal security’ ” is reasonable under the

circumstances of this case. (In re Tony C. (1978) 21 Cal.3d 888, 892.) Our

analysis shows the intrusion to be unreasonable.

II.

Once we assign proper weight and meaning to the California Constitution,

we can turn to the ultimate question in any case arising under article I, section 13:

whether the search or seizure in question is reasonable. (Ingersoll v.

Palmer (1987) 43 Cal.3d 1321, 1329 (Ingersoll); see also Brisendine, supra, 13

Cal.3d at p. 536.) At issue here is the compelled physical production of a

biological sample from someone who has not been convicted. Whether this

particular search satisfies the reasonableness standard is judged by balancing its

intrusion on the individual’s reasonable expectations of privacy against its

promotion of legitimate government interests. (People v. Robinson (2010) 47

Cal.4th 1104, 1120 (Robinson).) In this section, we examine the interests the

government says are served by the DNA Act. Ultimately, such interests either

ring hollow or prove insufficient to justify suspicionless, warrantless searches of

the type allowed by the Act.

As a threshold matter, it is questionable whether the DNA Act genuinely

furthers many of the interests the government identifies. The government must

create a DNA profile and compare it against existing profiles to obtain any of the

“identification” information it needs. The State informs us here that it takes

“around 30 days on average” to generate an identification profile from an

arrestee’s DNA sample. Yet in seeking to justify the collection of DNA, the

government points to functions — verifying identity, making bail decisions, and

13

so forth — that it must perform near to the time an arrestee is booked and

processed into jail, or shortly thereafter. In fact, the Attorney General

acknowledges that “in many cases” an arrestee is released from custody before the

State obtains his or her DNA profile. So, it seems unlikely that DNA collection

actually furthers any of these identification interests; the government even

acknowledges that it uses fingerprints, not DNA, to aid most of these decisions

and that fingerprinting “plays the lead role in confirming who a person is.” Law

enforcement officials are able to collect fingerprints promptly, compare them

against an electronic database composed of prints from various sources —

including former arrestees but also civil sources such as persons who have served

or are serving in the United States military, or have been or are employed by the

federal government — and obtain a response as to any “hits” within approximately

27 minutes. (FBI, Integrated Automated Fingerprint Identification System

archived at

<https://web.archive.org/web/20120921125141/http://www.fbi.gov/about-

us/cjis/fingerprints_biometrics/iafis/iafis/> [as of Apr. 2, 2018].) In short, it seems

that DNA collection does little to meaningfully further the State’s asserted

interests in establishing an arrestee’s identity and making various intake and

processing decisions.

The majority acknowledges that there may be a delay of “weeks or months”

between the initial booking and when a DNA profile is generated. (Maj. opn.,

ante, at pp. 36–37.) Nonetheless, it asserts that governmental interest in

identifying arrestees is unaffected because information from an DNA profile —

late as it may be in coming in — can still “influence the jailer’s decision about

where to house the arrestee,” or lead to a “revisit [of] an initial determination to

release the arrestee” or “impos[ition] [of] new release conditions.” (Id. at p. 36.)

The government did not advance interests so far removed from the time of

14

booking in its own briefs. Tellingly, the majority has cited no source to suggest

that jails have the capacity to rehouse felony arrestees — those arrested for

“serious or violent” crimes (id. at p. 17) — in more secured places simply because

they are now suspected of a second crime, as revealed by a “hit” against their

DNA profile. We also question the premise that a reassessment of the initial

release decision is in itself a compelling governmental interest, especially when

we have little idea — as neither the government nor the majority has told us —

how often such a circumstance presents itself. We are asked to tip the scale in

favor of the government without knowing how many felony arrestees are released;

released with less than a full set of conditions imposed; or face a revisit of the

initial release determination when their DNA generates a hit (as opposed to an

arrest on the new crime). To expect that we would simply look past this absence

of justification is to take the idea of a blindfold on the judicial process far too

literally. (See Riley, supra, 134 S.Ct. at p. 2485 [finding an asserted government

interest inadequate when “neither the United States nor California offers evidence

to suggest that their concerns are based on actual experience”].)

Instead of the supposed interests tied to the initial arrest and booking, the

most plausible justification for the present DNA collection is that it aids in

identifying arrestees who may have been perpetrators of unsolved crimes.

Proposition 69 was titled the “DNA Fingerprint, Unsolved Crime and Innocence

Protection Act.” Ballot arguments in favor of the initiative relied heavily on the

promise that DNA collection would increase the likelihood of solving cold cases

and help police investigations. (See Ballot Pamp., Gen. Elec. (Nov. 2, 2004)

argument in favor of Prop. 69.) For instance, those arguments referenced a

number of murders that had been solved based in part on DNA evidence and

promised that the DNA Act would help “solve crime, free those wrongfully

accused, and stop serial killers.” (Ballot Pamp., Gen. Elec. (Nov. 2, 2004) text of

15

Prop. 69, p. 62.) Likewise, the findings section of the proposed law declared that

it would “solve crime[s],” “apprehend perpetrators,” expand the number of “cold

hits and criminal investigation links,” and thereby “substantially reduce the

number of unsolved crimes.” (Id. at p. 135.)

The Attorney General’s arguments in defense of the DNA Act suffer

essentially the same malady. Most of the government’s justifications for the DNA

Act that the Attorney General emphasizes — even those couched in terms of

“identity” — pivot on generalized concerns about crime-solving. For instance, the

Attorney General argues that since the DNA Act was enacted, the State has

recorded more than 31,000 “hits” between identification profiles taken from

arrestees and DNA stored from unsolved cases. The government argues that DNA

identification yields “substantial benefits” for law enforcement, and illustrates the

point by referencing cold cases that were solved after many years when DNA

evidence was collected and linked to the unsolved matter. The government also

argues that the “benefits” from the DNA Act include deterrence, insofar as a

potential criminal is aware that the Act enhances law enforcement’s capacity to

identify the perpetrators of crimes and prosecute them.

Crime-solving through identification of such perpetrators can certainly

constitute a legitimate government interest. (See Robinson, supra, 47 Cal.4th at

pp. 1121–1122.) At issue here is not whether the government can have a

legitimate interest in solving crimes, but whether such a generalized interest ––

without more –– is sufficient to overcome the privacy rights of individuals subject

to arrest. We have made clear that where the primary purpose of a search or

seizure is to detect crime or gather evidence of crime, the government must

ordinarily have individualized suspicion that the person to be searched has

committed a specific offense for the search or seizure to be valid. (See Ingersoll,

supra, 43 Cal.3d at pp. 1327–1328.) Such individualized suspicion is utterly

16

missing when the government searches all arrestees for evidence that, at some

unknown time in some unknown place under unknown circumstances, they might

have committed some other unidentified crime.

The risk in simply embracing generalized crime-solving as sufficient

justification for compelled collection of a DNA sample from someone who has

merely been arrested is that such a move may be understood to justify searches

and seizures of people and places without any particularized suspicion. The

detection of legal wrongdoing is perhaps the preeminent justification for all

policing activity, making such a generalized interest virtually always loom in the

background when any law enforcement search is attempted. To allow such an

interest to tip the balance and allow for, first, an intrusion into the body; second,

analysis of the information seized therefrom; and, finally, potentially indefinite

retention of the results (regardless of the outcome of the initial arrest that served as

justification for the search), is to permit such an interest t

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