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Name: Haskell v. Harris
Case #: 10-15152
Court: US Court of Appeals
District 9 Cir
Opinion Date: 02/23/2012
Subsequent History: vacated and rehg. en banc granted

There is no Fourth Amendment violation by a statute authorizing the collection of DNA from arrestees, including those who are not ultimately convicted. Proposition 69, which passed in 2004, expanded DNA testing in California to include those adults arrested for a felony offense. The collection by buccal swabs is used to provide a DNA profile which is added to a nationwide Combined DNA Index System (CODIS). A group of plaintiffs who were arrested, but never convicted of felonies, brought a class-action against state officials. The action under 42 U.S.C. section 1983 alleged violations of their Fourth Amendment rights to be free from unreasonable searches and seizures and the Fourteenth Amendment rights of due process. The district court denial of a preliminary injunction was affirmed on the basis that it is not likely the plaintiffs would prevail on the merits. The taking of DNA is a search which implicates the Fourth Amendment. The taking under the instant statute is not carte blanche, but depends on the determination by a law enforcement officer that there is probable cause for arrest and the person is subject to booking which includes procedures with diminished expectations of privacy. The buccal swab is minimally intrusive and produces some “junk DNA” markers that only establish a record of the arrestees’ identity which equate with fingerprints. The material is then helpful in solving past crimes, prevents further crimes and helps to exonerate those wrongfully convicted. The balancing of these factors favors upholding the constitutionality of the 2004 Amendment. [Note: There is an extensive dissent by Judge Fletcher and there is likely to be further litigation of this issue by en banc review.]