A federal appeals court was asked at a hearing in San Francisco today to block a California law that requires police to collect DNA samples from anyone arrested on suspicion of a felony.
Four citizens represented by the American Civil Liberties Union claim that taking DNA from people who are arrested but never convicted of a crime is an unconstitutional search.
They appealed to the 9th U.S. Circuit Court of Appeals after a federal trial judge in San Francisco refused to grant a preliminary injunction suspending the measure, which went into effect in 2009.
Circuit Judge Milan Smith asked ACLU attorney Michael Risher whether there is any difference between the DNA collection and routine fingerprinting of suspects.
"My take is that it's infinitely more invasive," Risher told the court.
Risher said that unlike fingerprinting, DNA collection, done with cheek swabs, is an intrusion into the body. In addition, he argued, "DNA is our genetic blueprint."
"The reality is that fingerprints tell nothing about us, and our DNA can tell a huge amount about us," Risher told a three-judge panel.
The state, represented by the office of Attorney General Jerry Brown, contends the intrusion is minimal and is justified to help solve past and future crimes.
At a news conference before the hearing at the circuit courthouse at Seventh and Mission streets, Brown called DNA the "fingerprint of the 21st century."
"This is no more a violation of privacy than when you give up your fingerprints," he said.
He said DNA collected from arrestees has thus far led to the identification of suspects in more than 970 rapes, murders and other crimes.
The law bars authorities from using DNA information for purposes other than identification, such as for noting genetic diseases.
But Deputy Attorney General Daniel Powell said at the hearing that identification includes learning about a person's past criminal record.
"The concept of identification is to make sure who the person is," Powell told the court. "It's also about what the person has done."
Judge William Fletcher commented that was not the "ordinary use of the term."
The panel took the case under submission after hearing more than an hour of arguments and will issue a ruling at a later date.
DNA collection is mandated by 2004's Proposition 69, a voter initiative that gradually expanded the categories of people in the criminal justice system from whom DNA is taken.
Before 2004, DNA was generally taken only from people convicted of violent crimes.
The provision requiring DNA samples from all felony arrestees took effect on Jan. 1, 2009.
The state's DNA data bank, based in Richmond, now has 1.5 million entries. It is the fourth largest in the world, after China, the United Kingdom and the U.S. national database, according to the ACLU.
About 300,000 people are arrested in California each year on suspicion of felonies. About 100,000 of them are either never convicted or never charged with a crime.
The four plaintiffs in the ACLU case include three people who were arrested at protests in San Francisco and Berkeley but never charged with a crime. The fourth was charged with possession of stolen property in Sacramento, but the charge was dismissed.
Judge Fletcher said during the hearing that he was concerned about the state keeping DNA data on the one-third of arrestees who are never convicted of or charged with a felony.
Judge Smith described the balance between privacy concerns and law enforcement goals as a continuum.
"It's a very hard case that we're wrestling with here," he said. "Where do you draw the line?"
The third judge on the panel, visiting U.S. District Judge James Todd of Tennessee, said little during the session.