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Name: People v. Lowe
Case #: D059007
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/04/2013
Subsequent History: Review granted 3/19/2014: S215727

Mandatory taking of DNA samples without a warrant from persons arrested for felonies does not violate the Fourth Amendment. After Lowe’s arrest for a felony offense, police took a buccal swab DNA sample from inside his cheek without a warrant. The collection and analysis of the sample was authorized by a 2004 amendment to Penal Code section 296 (Prop. 69), which mandates the taking of DNA samples upon arrest for a felony. The DNA sample connected Lowe to a number of unsolved offenses and a jury convicted him of multiple burglaries, sex crimes and robberies. He was sentenced to 107 years to life. On appeal he challenged the trial court’s denial of his motion to suppress the DNA evidence obtained from him, which he argued was taken in violation of the Fourth Amendment. In an unpublished opinion, the Court of Appeal upheld the denial of Lowe’s suppression motion. The California Supreme Court granted review and transferred the case back to the Court of Appeal to reconsider its decision in light of Maryland v. King (2013) 133 S.Ct. 1958 (concluding that collecting and analyzing DNA samples from persons arrested and charged with serious offenses is reasonable). Concluding its prior decision was correct, the Court of Appeal found the 2004 amendment to section 296 does not violate the Fourth Amendment. While nonconsensual extractions of biological samples deserve Fourth Amendment protection, felony arrestees have a diminished expectation of privacy. A mouth swab, such as the one performed on Lowe, is minimally intrusive. The DNA profile developed from the fluid is used solely for identification purposes, which is useful to identify arrestees, solve past crimes, create a deterrent to commission of future crimes, and exonerate the innocent. Further, the profile is developed only from persons arrested for a felony based on probable cause.