!
i
TABLE OF CONTENTS
APPLICATION...................................................................................................................1
INTRODUCTION AND SUMMARY OF ARGUMENT .................................................. 7!
ARGUMENT ...................................................................................................................... 9!
I. MARYLAND V. KING DID NOT ESTABLISH A PER SE RULE AUTHORIZING
WARRANTLESS COLLECTION OF DNA FROM ARRESTEES .......................... 9!
A.! California’s Arrestee DNA Collection Law Violates the Fourth Amendment
to the United States Constitution...................................................................9!
B.! The Court of Appeal Properly Recognized California’s Constitutional
Protection Against Unlawful Searches and Seizures Precludes the
Warrantless Collection and Search of Arrestee DNA.................................17!
1.! King Failed to Recognize the Substantial Privacy Interest Arrestees
Maintain in Their Genetic Material...................................................18!
2.! Adopting the Supreme Court’s Flawed Reasoning in King will have
Unintended Consequences that Extend Far Beyond Collection of
DNA from Arrestees..........................................................................23!
a.! Failing to Recognize the Full Privacy Impact of DNA
Collection in this Context Will Allow the Government to
Collect a DNA Sample Whenever it May Currently Collect a
Fingerprint...............................................................................23!
b.! Reconceptualizing “Identification” to Include Investigative
Information Further Opens the Door to Abuse.......................26!
II.! DNA COLLECTION IMPLICATES SIGNIFICANT PRIVACY INTERESTS ...... 28!
A.! DNA Contains a Person’s Most Private and Personal Information.............29!
B.! As the Cost of DNA Processing Drops, the Government is Already
Expanding Its Collection and Use of DNA.................................................34!
C.! Excessive DNA Collection Poses Very Real Threats to Liberty.................41!
CONCLUSION..................................................................................................................50
CERTIFICATE OF WORD COUNT ............................................................................... 51!
CERTIFICATE OF SERVICE .......................................................................................... 52!
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ii
TABLE OF AUTHORITIES
Cases
!
Ashcroft v. al-Kidd
(2011) 131 S.Ct. 2074 ................................................................................................... 21
Cupp v. Murphy
(1973) 412 U.S. 291 ..................................................................................................... 20
Haskell v. Harris
(9th Cir. 2012) 669 F.3d 1049 ..................................................................................... 28
Katz v. United States
(1967) 389 U.S. 347 ..................................................................................................... 19
King v. State
(Md. 2012) 42 A.3d 549 ............................................................................................... 19
Kyllo v. U.S.
(2001) 533 U.S. 27 ....................................................................................................... 21
Marron v. United States
(1927) 275 U.S. 192 ..................................................................................................... 21
Maryland v. King
(2013) 133 S.Ct. 1958 ........................................................................................... passim
People v. Brisendine
(1975) 13 Cal. 3d 528 ................................................................................................... 17
People v. Buza
(2014) 231 Cal.App.4th 1446 ............................................................................... passim
People v. Mayberry
(1982) 31 Cal. 3d 335 ................................................................................................... 20
People v. McKay
(2002) 27 Cal.4th 601 ................................................................................................... 21
People v. Melton
(1988) 44 Cal. 3d 713 ................................................................................................... 19
People v. Robinson
(2010) 47 Cal. 4th 1104 ................................................................................................ 20
Raynor v. State
(Md. 2014) 99 A.3d 753 ....................................................................................... passim
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iii
Riley v. California
(2014) 134 S.Ct. 2473 ......................................................................................... 9, 20, 37
Schmerber v. California
(1966) 384 U.S. 757 ............................................................................................... 19, 20
Skinner v. Ry. Labor Execs.’ Ass’n
(1989) 489 U.S. 602 ..................................................................................................... 20
State v. Medina
(Vt. 2014) 102 A.3d 661 ............................................................................................... 28
U.S. v. Ponce
(E.D. Cal. 2007) Mag.No. 07-00215-DAD,
(E.D. Cal. 2007) SW 07-2000-KJM,
(C.D. Cal. 2007) Mag.No. 07-0199 .............................................................................. 42
United States v. Comprehensive Drug Testing, Inc.
(9th Cir. 2010) 621 F.3d 1162 ...................................................................................... 22
United States v. Dionisio
(1973) 410 U.S. 1 ......................................................................................................... 20
United States v. Jones
(2012) 132 S.Ct. 945 ..................................................................................................... 36
United States v. Kincade
(9th Cir. 2004) 379 F.3d 813 .................................................................................. 19, 28
United States v. Knotts
(1983) 460 U.S. 276 .................................................................................................... 36
United States v. Kriesel
(9th Cir. 2007) 508 F.3d 941 .................................................................................. 21, 29
United States v. Mitchell
(3d Cir. 2011) 652 F.3d 387 ............................................................................. 19, 28, 34
United States v. Morgan
(S.D.N.Y. 2014) 53 F.Supp.3d 732 .............................................................................. 43
United States v. Pool
(9th Cir. 2010) 621 F.3d 1213 ................................................................................ 20, 34
United States v. Stevens
(2010) 559 U.S. 460 ..................................................................................................... 22
Varriale v. State
(Md. 2015) 119 A.3d 824 ........................................................................... 24, 25, 26, 27
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iv
Statutes
!
Md. Crim. Law Code Ann. §14-101 ................................................................................ 11
Md. Pub. Saf. Code Ann. § 2-504 .................................................................................... 11
Md. Pub. Saf. Code Ann. § 2-511 ........................................................................ 14, 15, 16
Md. Pub. Saf. Code Ann. §2-506 ..................................................................................... 10
Penal Code § 295 .............................................................................................................. 27
Penal Code § 296.1 ........................................................................................................... 10
Penal Code § 299 .................................................................................................. 14, 15, 16
Penal Code § 299.5 ........................................................................................................... 21
Constitutional Provisions
!
Cal. Const., art. I, § 13 ........................................................................................................ 8
Cal. Const., art. I, § 24 ...................................................................................................... 17
U.S. Const., amend. IV ............................................................................................. 8, 9, 21
Other Authorities
!
2011 Annual Report: Maryland State Police Forensic Sciences Division Statewide
DNA Database Report, Dep't of Md. State Police (2012) ............................................ 48
AncestryDNA Database Exceeds 400,000 Genotyped Members, Ancestry.com
(April 30, 2014) ............................................................................................................ 31
Andrew Pollack, Building a Face, and a Case on DNA, N.Y. Times (Feb. 23, 2015) .... 38
Audit of Compliance with Standards Governing combined DNA Index System
Activities at the County of Santa Clara District Attorney’s Crime Laboratory,
DOJ OIG (2012) ........................................................................................................... 41
Brian A. Reeves, Census of State and Local Law Enforcement Agencies,
2008 (2011) ................................................................................................................... 40
Brown Announces Elimination of DNA Data Bank Backlog (Sept. 10, 2007) ................. 35
Cal. DOJ Crime in California 2014, FELONY ARRESTS, 2009-2014 .............. 11, 12, 14
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v
Carla G van El, et al., Whole-Genome Sequencing in Health Care (2013)
21 European J. Human Genetics ................................................................................... 37
Chris Miles, DHS Rapid & Low-Cost Biometrics ............................................................ 39
CODIS Brochure, FBI ...................................................................................................... 37
CODIS—The Future, FBI ........................................................................................... 32, 41
Crime in Maryland, 2013 Uniform Crime Report ...................................................... 11, 12
Criminal Justice Fact Sheet, NAACP .............................................................................. 48
Darwin Bond Graham & Ali Winston, The Real Purpose of Oakland's Surveillance
Center, East Bay Express (Dec. 18, 2013) ................................................................... 31
DNA Frequently Asked Questions: Effects of the All Adult Arrestee Provision,
Cal. Bureau of Forensic Servs. ..................................................................................... 34
DNA Sequencing Costs, National Human Genome Research Institute ............................ 31
Elizabeth E. Joh, The Myth of Arrestee DNA Expungement, __U.Pa.L.Rev.Online__,
6 (forthcoming 2015) .................................................................................. 13, 14, 15, 16
Ellen McRae Greytak, DNA Phenotyping and Kinship Determination, Parabon
NanoLabs ...................................................................................................................... 39
Erika Check Hayden, Ethics: Taboo Genetics, Nature (Oct. 2, 2013) ............................... 7
Erin Murphy, Inside the Cell, (2014) ............................................................................... 35
Erin Murphy, License, Registration, Cheek Swab: DNA Testing and
the Divided Court, 127 Harv. L. Rev. 161 (2013) ............................................ 24, 27, 29
Erin Murphy, Relative Doubt: Familial Searches of DNA Database,
109 Mich. L. Rev. 291 (Dec. 2010) ...................................................................... passim
Erin Murphy, The Dark Side of DNA Databases, The Atlantic (Oct. 8, 2015) ................ 44
Erin Murphy, The New Forensics: Criminal Justice, False Certainty,
and the Second Generation of Scientific Evidence 95 Calif. L. Rev. 721 (2007) ........ 46
Exhibit 300: Capital Asset Summary: FBI Combined DNA Index System (CODIS),
UII 011-000002501, Dept. of Justice (Aug. 1, 2012) ................................................... 41
FAQs on the CODIS Program and the National DNA Index System, FBI ...................... 40
FBI Contracts with Unisys for Development and Deployment of Next-Generation
Combined DNA Index System, Business Wire (Oct. 19, 2006), ................................... 40
FBI, “CODIS—NDIS Statistics” ..................................................................................... 12
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vi
GenBank Overview, Nat’l Center for Biotech. Info., Nat’l Insts. of Health .................... 30
Genomes by the Thousand, Nature (Oct. 28, 2010) ......................................................... 31
Hannah Barnes, DNA Test Jailed Innocent Man for Murder, BBC (Aug. 31, 2012) ...... 42
Henry Lee, How Innocent Man’s DNA Was Found at Killing Scene, SF Gate
(June 26, 2013) ....................................................................................................... 42, 43
Henry T. Greely, et al., Family Ties: The Use of DNA Offender Databases to Catch
Offenders’ Kin, 34 J.L. Med. & Ethics 248, 259 (2006) .............................................. 49
Information Bulletin: DNA Partial Match (Crime Scene DNA Profile to Offender)
Policy, Cal. Dept. of Justice (Oct. 27, 2008) ................................................................ 32
Jason Silverstein, The Dark Side of DNA Evidence, The Nation (March 27, 2013) ........ 48
Jaxon Van Derbeken, Technician, Boss in SFPD Lab Scandal Flunked DNA Skills
Exam, San Francisco Chronicle (March 31, 2015) ....................................................... 45
Jennifer Lynch, How Private DNA Data Led Idaho Cops on a Wild Goose Chase and
Linked an Innocent Man to a 20-year-old Murder Case, EFF (May 1, 2015) ............. 47
Jennifer Lynch, Rapid DNA: Coming Soon to a Police Department or Immigration
Office Near You, EFF (Jan. 6, 2013) ............................................................................ 39
Jeremiah Goulka, et al., Toward a Comparison of DNA Profiling and Databases
in the United States and England, RAND (2010) ............................................ 34, 35, 37
Joseph Goldstein, New York Examines Over 800 Rape Cases for Possible
Mishandling of Evidence, N.Y. Times (Jan. 10, 2013) ................................................. 45
Joseph Goldstein, Police Agencies Are Assembling Records of DNA, N.Y. Times
(June 12, 2013) ............................................................................................................. 34
Julie Samuels, et al., Collecting DNA at Arrest: Policies, Practices & Implications,
The Urban Institute (May 2013) ................................................................................... 13
Kris Wetterstrand, DNA Sequencing Costs: Data from the NHGRI Genome
Sequencing Program .................................................................................................... 38
Linda Geddes, DNA Super-Network Increases Risk of Mix-Ups, New Scientist
(Sep. 5, 2011) ................................................................................................................ 42
Lizzie Buchen, Biology and Ideology: The Anatomy of Politics, Nature,
(Oct. 24, 2012) ................................................................................................................ 7
Low Copy Number DNA Cases, Denver DA .................................................................... 43
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vii
Maryland DNA Legislation, Maryland Governor's Office of Crime Control &
Prevention ............................................................................................................... 11, 12
Melissa Gymrek, et al., Identifying Personal Genomes by Surname Inference,
339 Science (Jan. 18, 2013) .......................................................................................... 32
Michael T. Risher, Racial Disparities in Databanking of DNA Profiles, Race and
the Genetic Revolution: Science, Myth, and Culture (2011) ........................................ 48
N. Webster, An American Dictionary of the English Language 66 (1828)
(reprint 6th ed.1989) ..................................................................................................... 21
Nat’l DNA Database Strategy Bd., (U.K.) ....................................................................... 44
Nate Berg, “Predicting crime, LAPD-style,” The Guardian (June 25, 2014) .................. 32
National DNA Database Annual Report 2005-2006, (2006) ........................................... 44
National Geographic, The Genorgraphic Project ............................................................ 31
Office of the Attorney General Dispositions of Adult Felony Arrests, 2009-2014,
Crime in California 2014 ............................................................................................. 13
Overview of Race and Hispanic Origin: 2010, U.S. Census Bureau (2011) ................... 48
Parabon Snapshot ............................................................................................................. 38
Peter Gill, Application of Low Copy Number DNA Profiling, Croatian Medical Journal
42(3) (2001) .................................................................................................................. 43
Planned Process and Timeline for Implementation of Additional CODIS
Core Loci, FBI .............................................................................................................. 34
Portable DNA Analyzer, NEC ................................................................................... 39, 40
Rebecca Cohen, Forget CSI: Real-Life Crime Labs Are a Total Mess, Mother Jones
(Apr. 20, 2015) ............................................................................................................. 46
Revolutionary DNA Testing Instruments Now Available to DPS Detectives, Arizona
Dep’t of Public Safety (May 13, 2014) ........................................................................ 39
Ron Winslow, 23andMe to Mine Genetic Database for Drug Discovery, Wall St. J.
(March 12, 2015) .......................................................................................................... 31
Rori Rohlfs, et al., The Influence of Relatives on the Efficiency and Error Rate of
Familial Searching, PLOS One (Aug. 14, 2013) ................................................... 47, 49
State and County Quickfacts, United States Census Bureau ............................................ 48
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viii
State of California Department of Justice, Office of the Attorney General, BFS DNA
Frequently Asked Questions: California’s Familial Search Policy, ............................ 33
Stephen Mercer and Jessica Gabel, Shadow Dwellers: The Underregulated World of
State and Local DNA Databases, 69 N.Y.U. Ann. Surv. Am. L. (2014) ............. passim
The $100 Genome: Implications for the DoD, JASON, The MITRE Corporation (2010)37
Valerie Evanoff, FBI Next Generation Identification (NGI) DNA Study, Global Identity
Summit (Sept. 17, 2014) ............................................................................................... 41
Victor Toom, Forensic DNA Databases in England and the Netherlands: Governance,
Structure and Performance Compared, New Genetics and Society 31(3) (2012) ....... 35
Victoria Turk, The UK’s Plan to Sequence 100,000 Human Genomes, Motherboard
(July 17, 2015) .............................................................................................................. 31
White Paper: The Case for Rapid DNA, IntegenX, (2012) .............................................. 39
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1
APPLICATION OF THE ELECTRONIC FRONTIER FOUNDATION,
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
MARYLAND PUBLIC DEFENDER, AND INTERESTED LEGAL SCHOLARS
FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Pursuant to California Rule of Court 8.520(f), the Electronic Frontier Foundation
(“EFF”) respectfully requests leave to file a brief amicus curiae on behalf of itself, the
National Association of Criminal Defense Lawyers, the Maryland Public Defender, and
law professors Jessica Gabel Cino, Elizabeth Joh, Erin Murphy, and Andrea Roth in
support of Defendant/Respondent Mark Buza.
1
EFF is a San Francisco-based, donor-supported, nonprofit civil liberties
organization working to protect and promote fundamental liberties in the digital world.
Through direct advocacy, impact litigation, and technological innovation, EFF’s team of
attorneys, activists, and technologists encourage and challenge industry, government, and
courts to support privacy, civil liberties, free expression, and transparency in the
information society.
EFF has served as counsel or amicus curiae in numerous cases involving the
intersection of privacy and technology, including Riley v. California (2014) 134 S.Ct.
2473; United States v. Jones (2012) 132 S.Ct. 945, National Aeronautics and Space
Administration v. Nelson (2011) 131 S.Ct. 746, and City of Ontario v. Quon (2010) 130
S.Ct. 2619. EFF has also served as amicus in cases considering the constitutionality of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
No party’s counsel authored this brief in whole or in part. Neither any party nor any
party’s counsel contributed money that was intended to fund preparing or submitting this
brief. No person other than amicus EFF contributed money intended to fund preparing or
submitting this brief.
!
2
DNA testing of pretrial arrestees. See People v. Buza (2011) 197 Cal.App.4th 1424;
Raynor v. Maryland (2015) 135 S.Ct. 1509 (cert. den.); Maryland v. King (2013) 133
S.Ct. 1958; United States v. Mitchell (3d Cir. 2011) 652 F.3d 387; United States v. Pool
(9th Cir. 2010) 621 F.3d 1213 (vacated (9th Cir. 2011) 659 F.3d 761); Haskell v. Harris
(9th Cir. 2012) 669 F.3d 1049 (amicus brief in support of rehearing en banc).
The National Association of Criminal Defense Lawyers (NACDL) is a nonprofit
voluntary professional bar association working on behalf of criminal defense attorneys to
promote justice and due process for those accused of crime or misconduct. NACDL was
founded in 1958. It has a nationwide membership of approximately 9,200 and up to
40,000 including affiliates’ membership. NACDL’s members include private criminal
defense lawyers, public defenders, military defense counsel, law professors, and judges.
NACDL is the only nationwide professional bar association for public defenders and
private criminal defense lawyers. The American Bar Association recognizes NACDL as
an affiliated organization and awards it representation in the ABA House of Delegates.
NACDL is dedicated to advancing the proper, efficient, and just administration of justice
and files numerous amicus briefs each year in federal and state courts across the nation,
addressing issues of broad importance to criminal defendants, criminal defense lawyers,
and the criminal justice system as a whole, including in cases involving privacy and DNA
testing and collection, such as Maryland v. King in the United States Supreme Court.
The Maryland Public Defender is an independent state agency created by the
Maryland General Assembly in 1971. The mission of the Maryland Public Defender is to
ensure enforcement of the right to effective assistance of counsel for eligible clients in
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3
state court. With over 900 employees (570 attorneys) across 52 offices located in twelve
districts and seven specialized divisions, the Public Defender is the largest legal services
organization in the state, providing representation in over 230,000 matters a year to more
than 70,000 clients. Attorneys employed by the Public Defender regularly represent
clients who are subject to the state’s ever-widening DNA collection schemes. The Public
Defender has litigated issues surrounding the government’s DNA collection schemes in
Varriale v. Maryland, 119 A.3d 824 (Md. 2015) (volunteered DNA sample for one
purpose used for other purposes) cert. pending; Maryland v. King, 133 S.Ct. 1958 (2013)
(compelled collection of DNA from person charged with serious crime); Raynor v. State,
99 A.3d 753 (Md. 2014) (amicus curie) (police collection of involuntarily shed DNA
sample); Corbin v. Maryland, 52 A.3d 946 (Md. 2012) (collection of probationer’s saliva
sample from straw used in breath test to monitor alcohol use); Williamson v. Maryland,
993 A.2d 626 (Md. 2010) (collection of DNA sample from discarded paper cup); and
Maryland v. Raines, 857 A.2d 19 (2004) (compelled collection of convicted offender
DNA).
The Public Defender is particularly concerned about the racial justice implications
of a DNA collection scheme that compels a person to submit to DNA sampling before he
or she is presented to a judicial officer. It is the experience of the Public Defender that
when the police have great leeway to subject individuals to mandatory DNA sampling, it
will be our clients—frequently judged to be the “usual suspects”—who will suffer the
greatest harm to their dignitary and privacy interests. In the first three years that
Maryland began collecting data about racial demographics of arrestees from whom DNA
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4
samples were seized, minorities have consistently represented approximately 60% of the
total number of individuals subject to the compelled collection of DNA upon being
charged. See Maryland State Police Annual Statewide DNA Database Report (2011)
(http://tinyurl.com/marylandreport). A practice that requires DNA sampling at the point
of arrest will amplify the disproportionate impact of a collection scheme on minorities
and, through familial searching techniques, their unsuspecting relatives, increasing the
likelihood that innocent people of color will experience unwarranted law enforcement
surveillance and societal stigmatization in the future. Maryland’s history of DNA
collection practices underscores the need for this Court to closely scrutinize the
implications of a decision to constitutionally authorize DNA sampling upon arrest.
The Public Defender has a strong interest in the issues presented in this case.
Jessica Gabel Cino is a law professor at Georgia State University College of Law.
Professor Cino teaches and writes about the intersection of law and science, including
ethical issues surrounding forensic DNA evidence and DNA databases. She has been
invited to give national and international presentations on forensic DNA and has written
several law review articles on the topic: Shadow Dwellers: The Under-regulated World of
Local DNA Databanks, 69 N.Y.U. Ann. Survey of Am. L.Rev. 3 (Winter 2015) (co-
author); Indecent Exposure: Genes are More than a Brand Name Label in the DNA
Database Debate, 42 U. Balt. L. Rev. 561 (Spring 2013); and Probable Cause from
Probable Bonds, A Genetic Tattle Tale Based on Familial DNA, 21 Hastings Women's
L.J. 3 (Winter 2010). Professor Cino has no stake in the outcome of this case, but is
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5
committed to ensuring that the law evolves in pace with technology so that constitutional,
privacy, and ethical concerns are addressed proactively.
Elizabeth Joh is a Professor of Law at the U.C. Davis School of Law. Her research
on policing, surveillance, and new technologies appears or is forthcoming in nationally
recognized law reviews including the Stanford Law Review, the University of
Pennsylvania Law Review Online, the Virginia Law Review Online, the Southern
California Law Review, the Boston University Law Review, and the California Law
Review. She has no stake in the outcome of this case, but is committed to ensuring that
law enforcement interests in DNA evidence collection are carefully balanced against the
protection of civil liberties.
Erin Murphy is a professor at NYU School of Law. Her research focuses on
technology and forensic evidence in the criminal justice system. She is a nationally
recognized expert in forensic DNA typing, and her work has been cited multiple times by
the Supreme Court. Her new book, Inside the Cell: The Dark Side of Forensic DNA
(Nation Books 2015) addresses scientific, statistical, and social policy issues related to
forensic DNA typing. Murphy is co-editor of the Modern Scientific Evidence treatise,
and presently serves as the Associate Reporter for the American Law Institute's project to
revise Article 213 of the Model Penal Code. She has previously authored briefs amicus
curiae in Supreme Court cases regarding forensic evidence, and consulted formally and
informally on DNA litigation. She has no stake in the outcome of this case, but is
committed to ensuring that the law make judgments regarding DNA collection and
storage that accurately reflect the scientific and statistical implications of the technology.
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6
Andrea Roth is an assistant professor of law at the University of California,
Berkeley School of Law who teaches and writes about criminal law and forensic
evidence. She serves on the Constitution Project’s National Committee on DNA
Collection. She has written several law review articles on the intersection of DNA and
criminal law, criminal procedure, and evidence, including several articles about DNA
databases, and one about the decision in Maryland v. King. She has no stake in the
outcome of this case, but is committed to ensuring that the construction of DNA
databases is equitable and rational in light of the goals of the criminal justice system.
For these reasons, amici respectfully request leave to file the attached brief.
DATED: November 13, 2015 Respectfully submitted,
ELECTRONIC FRONTIER FOUNDATION
By: /s/ Jennifer Lynch
Jennifer Lynch
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, California 94109
Telephone: (415) 436-9333
Attorney for Amici Curiae
Electronic Frontier Foundation, et al.
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!
7
INTRODUCTION AND SUMMARY OF ARGUMENT
Our DNA contains our entire genetic makeup—private and intensely personal
information that maps who we are, where we come from, and who we will be. DNA can
be used to identify us in the narrow and proper sense of that word—“who is that?”—but
it can also tell us where in the world our ancestors came from, who we are related to, our
physical characteristics, and whether we are likely to get a host of genetically-determined
diseases. Researchers have theorized DNA may also determine race, intelligence,
criminality, sexual orientation, and even political ideology.
2
Since 2009, California has collected DNA without a warrant from people merely
arrested for a crime—people who are presumed innocent and therefore not that different
from the lawyers arguing this case or the Justices deciding it. California argues DNA
collection is necessary to “precisely” identify an arrestee, but DNA profiles are not
actually used to verify the arrestee’s identity. If they were, the collected sample would be
immediately tested and instantly compared to the database of known persons, and then
destroyed once the identity is confirmed. But that is not what the state does with the DNA
it collects. Rather, the state collects DNA from persons at arrest, tests it at some point in
the future, and then places it in a database where it is continuously searched in perpetuity
against a database of unsolved crime. That is clearly an investigative objective, not an
identification objective. The investigative nature of the objective is even more evident
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2
Erika Check Hayden, Ethics: Taboo Genetics, Nature (Oct. 2, 2013)
http://www.nature.com/news/ethics-taboo-genetics-1.13858; Lizzie Buchen, Biology and
Ideology: The Anatomy of Politics, Nature, Oct. 24, 2012,
http://www.nature.com/news/biology-and-ideology-the-anatomy-of-politics-1.11645.
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8
given the myriad rapid identification tools California already has at its disposal—and
uses regularly—from fingerprints to palm prints to face recognition-capable photographs.
California also claims that DNA profiles contain no more data than a fingerprint,
and therefore the arrestee’s privacy interest is minimal. But DNA profiling requires the
seizure of a DNA sample that contains the arrestee’s entire genome. And as shown by the
fact that California conducts “familial” searching on its offender database, a DNA profile
alone can tell to whom a person is related and may also be able to tell, when combined
with other publicly available data, whether a person is more or less likely to have a given
trait or get a specific disease. The breadth of information obtained from a mere
fingerprint is not remotely comparable to that in DNA.
Finally, California argues that mandating DNA collection from people arrested for
felonies—including non-serious, non-violent felonies—is constitutional under both the
Fourth Amendment and the California Constitution’s parallel provision, Article I, Section
13. The state insists this Court should follow the Supreme Court’s lead in Maryland v.
King (2013) 133 S.Ct. 1958, and find that the privacy interests implicated by the
collection, indefinite retention and repeated search of DNA are outweighed by the
government’s interest in “identifying” an arrestee. However, the sharp differences
between California’s and Maryland’s statutes, the additional privacy protections
guaranteed by the California Constitution, and the serious privacy and liberty interests
implicated by DNA collection, counsel the opposite.
The Court of Appeal correctly recognized the limitations of the United States
Supreme Court’s analysis in King and declined to follow it in this case—both in its
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9
analysis of California’s DNA Act under the Fourth Amendment and under Article I,
section 13 of the California Constitution. This Court should uphold the Court of Appeal’s
decision and put an end to the expansion of warrantless DNA collection.
ARGUMENT
I. MARYLAND V. KING DID NOT ESTABLISH A PER SE RULE
AUTHORIZING WARRANTLESS COLLECTION OF DNA FROM
ARRESTEES
A. California’s Arrestee DNA Collection Law Violates the Fourth
Amendment to the United States Constitution
The Court of Appeal correctly recognized that, even in light of the United States
Supreme Court’s opinion in Maryland v. King, California’s Arrestee DNA collection law
violates the Fourth Amendment. “[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness.” Riley v. California (2014) 134 S.Ct. 2473, 2482 (citation omitted).
Where, as here, a search is ultimately undertaken to “discover evidence of criminal
wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.”
Ibid. (quotations omitted). Given the dramatic differences between California’s DNA
collection statute and Maryland’s and the increased impact those differences have on
arrestees’ privacy interests, California’s statute fails to meet the Fourth Amendment’s
reasonableness requirement.
While the state appears to believe the Supreme Court in King carved out a Fourth
Amendment exception for the warrantless collection of DNA from all arrestees, the Court
did not. King only upheld such DNA collection under the specifics of Maryland’s DNA
collection law. King (2013) 133 S.Ct. at 1967, 1977-79 (discussing the particulars of
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10
Maryland’s statute and, in the context of that statute, balancing the arrestee’s interests
against the government’s). As the Court of Appeal aptly recognized, given the sharp
distinctions between Maryland’s DNA collection statute and California’s, it is
questionable whether California’s law meets the standards of the Fourth Amendment,
even in light of King. People v. Buza (2014) 231 Cal.App.4th 1446, 1451 (review granted
and opinion superseded, (Cal. 2015) 342 P.3d 415). The four main differences between
the two statutes are shown in the table below.
!
Comparison of California and Maryland’s Arrestee DNA Collection Statutes
California
Maryland
From whom?
All felony arrestees
Arrestees of serious, violent
felonies
When collected and
analyzed?
Upon arrest and before
charging occurs
3
After judicial finding of
probable cause
4
Expungement
Arrestee must petition for
expungement
Automatic expungement /
destruction of sample
Familial search
5
No statutory or regulatory
prohibition of familial
search, and a practice of
familial search performed
on offender database
Familial search expressly
prohibited by statute
6
As, the majority recognized in King, Maryland limits its DNA collection to those
arrested for a “serious offense.” See King, 133 S.Ct. at 1965, (noting King’s DNA was
collected “[a]s part of a routine booking procedure for serious offenses” (emphasis
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3
Penal Code §§ 296.1(a)(1)(A); 296(a)(2)(C).!
4
Md. Pub. Saf. Code Ann. § 2–504(d)(2)(i).!
5
Discussed in detail infra Section 2.C.
6
Md. Pub. Saf. Code Ann. §2-506(d).
!
11
added)); id. at 1977 (noting Maryland’s statute applies to “serious” offenders).
Maryland’s statute only allows the collection of DNA from those arrested for specific
felonies, including “crime[s] of violence, burglary, or an attempt to do either. See Md.
Pub. Saf. Code Ann. § 2-504; Md. Crim. Law Code Ann. §14-101 (listing “crime[s] of
violence”).
However, California’s law applies to all those arrested in the state for any felony.
This distinction has real-world implications for privacy. Because Maryland’s law is
limited in scope, it impacted approximately 17,400 out of its total 245,505 arrests in 2013
(the most recent year for which there are data).
7
In contrast, according to the California
Department of Justice, there were 411,929 felony arrests in California in 2013, all of
which were DNA-eligible.
8
Even accounting for differences in the size of each state’s
population, California’s law impacts many more people than Maryland’s.
9
In fact,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7
Maryland’s DNA collection law applies to arrests for “a crime of violence or an attempt
to commit a crime of violence; or burglary or an attempt to commit burglary.” Md. Pub.
Saf. Code Ann. § 2-504(a)(3)(i)(1-2). Maryland’s 2013 Uniform Crime Report estimates
that arrests for “crime[s] of violence” amounted to approximately five percent, or 12,275
of the 245,505 total arrests for 2013. See Crime in Maryland, 2013 Uniform Crime
Report, pp. 110-111, http://goccp.maryland.gov/msac/documents/
2013_Crime_in_Maryland_UCR.pdf. Although Maryland does not appear to track arrests
for burglary, it does note that it cleared 16% or 5,102 of its 31,889 burglary cases in
2013. Id. at 201. By adding the number of cleared burglaries to the number of arrests for
crimes of violence, one can estimate that Maryland had approximately 17,377 DNA-
eligible arrests in 2013.
8
Cal. DOJ Crime in California 2014, p. 23, Table 22 - FELONY ARRESTS, 2009-2014
https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd14/cd14.pdf?.
9
Maryland and California both began collecting DNA from arrestees in 2009. See
Maryland DNA Legislation, Maryland Governor's Office of Crime Control & Prevention,
http://goccp.maryland.gov/dna/legislation.php. The U.S. Census Bureau estimates that as
of 2014, California’s population was 38,802,500, and Maryland’s population was
!
!
12
California is the largest contributor of arrestee DNA profiles to CODIS; the state has
contributed 612,612 profiles out of just over 2 million nationwide as of September
2015.
10
In contrast, Maryland has submitted just 29,478.
11
Comparison of Impact of Arrestee DNA Collection Laws
California
Maryland
Number of DNA-eligible
arrests in 2013
411,929
12
17,400
13
Total number of
arrestee profiles
submitted to CODIS as
of September 2015
612,612
14
29,478
15
Percentage of state
population included in
CODIS arrestee
database
16
1.58%
0.49%
Moreover, unlike Maryland, California neither requires a judicial finding of
probable cause prior to DNA collection nor provides for automatic expungement of data
and destruction of the DNA sample if a person is not charged with or convicted of the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
5,976,407. See http://quickfacts.census.gov/qfd/states/06000.html;
http://quickfacts.census.gov/qfd/states/24000.html.
10
FBI, “CODIS—NDIS Statistics” https://www.fbi.gov/about-us/lab/biometric-
analysis/codis/ndis-statistics/#California.
11
FBI, “CODIS—NDIS Statistics” https://www.fbi.gov/about-us/lab/biometric-
analysis/codis/ndis-statistics/#Maryland. Maryland and California both began collecting
DNA from arrestees in 2009. See Maryland DNA Legislation, Maryland Governor's
Office of Crime Control & Prevention, http://goccp.maryland.gov/dna/legislation.php.
12
See supra note 8.
13
See supra note 7.
14
See supra note 10.
15
See supra note 11.
16
See supra note 9.
!
13
crime for which he or she was arrested. As shown in the table below, the lack of
automatic expungement results in almost no actual expungement of DNA.
Comparison of California and Maryland’s Expungement Statistics
California
Maryland
Number of arrestee
samples expunged
98
(out of 731,315)
17
10,258
(out of 33,649)
18
Percentage of arrestee
samples expunged
.0134%
30.4853%
Percentage of
arrestees never
charged or convicted
(likely expungement
eligible) (2014)
31.1%
19
Unknown, but likely close to
the percentage of arrestee
samples expunged
May DNA eligible for
expungement be used
in future
investigations?
YES
“Any identification,
warrant, probable cause to
arrest, or arrest based upon
a data bank or database
match is not invalidated
due to a failure to expunge
NO
DNA eligible for
expungement is not
admissible in any proceeding
and may not form the basis
for probable cause, even if it
hasn’t yet been expunged or
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
17
Elizabeth E. Joh, The Myth of Arrestee DNA Expungement, __U.Pa.L.Rev.Online__, 6
(forthcoming 2015).
18
Julie Samuels, et al., Collecting DNA at Arrest: Policies, Practices & Implications, The
Urban Institute, p. 67 (May 2013) http://www.urban.org/research/publication/collecting-
dna-arrest-policies-practices-and-implications/view/full_report.
19
This number is approximate. The California DOJ states that in 2014, 68.9% of arrests
resulted in conviction. Of the remaining arrestees: 3.2% were released by law
enforcement; 15.3% were not prosecuted; 12.4% had their cases dismissed; and 0.1%
were acquitted. Office of the Attorney General, Table 38A: Dispositions of Arrests,
2009-2014, Crime in California 2014, 50, available at
https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/
cd14/cd14.pdf?; See also Samuels, Collecting DNA at Arrest, p.8 (estimating that “one in
two felony arrests will not result in a felony conviction”).
!
14
or a delay in expunging
records.”
20
destroyed.
21
In California, nearly a third of felony arrestees are determined after their arrest to
be innocent in the eyes of the law of the crime for which they were arrested. In 2014
alone, 10,227 arrests resulted in law enforcement releases.
22
And yet, only 98 people
between 2009 and 2014—an average of 16 people per year—have been able to
successfully have their DNA removed from the state’s database.
23
This means that likely
well over 200,000 former arrestees who are eligible for expungement in California still
have their DNA stored in the database. Given that California will not invalidate “[a]ny
identification, warrant, probable cause to arrest, or arrest based upon a data bank or
database match . . . due to a failure to expunge or a delay in expunging records,” Penal
Code § 299(d), there is also no incentive for the government to refrain from searching
this data.
The table below demonstrates why only 98 people in 6 years have been able to
have their DNA data and sample expunged. The lack of automatic expungement,
combined with California’s onerous and seemingly capricious process for obtaining
expungement places significant burdens on arrestees and would dissuade all but the most
persistent person from even attempting to get his or her data removed from the system.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20
Penal Code § 299(d).
21
Md. Pub. Saf. Code Ann. § 2-511(f).
22
See supra note 8.
23
Joh, supra note 16, at 8.
!
15
And even if that persistent person were to make it all the way through the process, the
reviewing court has discretion to deny the request, and that decision is not appealable.
24
Comparison of California and Maryland’s Expungement Processes
California
Maryland
Who bears the
burden of
initiating
expungement
process?
Arrestee bears burden:
“a person who has no past or present
qualifying offense, and for whom there
otherwise is no legal basis for retaining
the specimen or sample or searchable
profile, may make a written request to
have his or her specimen and sample
destroyed and searchable database
profile expunged.”
25
State bears the burden:
DNA samples and
records “shall be
destroyed or expunged
automatically from the
State DNA data base” if
certain requirements are
met.
26
Also, the state must
notify the arrestee that
expungement has
occurred.
27
Time Period
for
Expungement
No time period specified.
28
Automatically within 60
days of arrestee being
eligible for
expungement.
29
Expungement
process
Former arrestee must send written
request with proof of service to:
1. Trial court where arrest occurred
2. State DNA lab
3. Prosecuting attorney
30
Automatic
34
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24
Ibid.; Penal Code § 299(c)(1).
25
Penal Code § 299(b).
26
Md. Pub. Saf. Code Ann. § 2-511(a).
27
Md. Pub. Saf. Code Ann. § 2-511(e).
28
Penal Code § 299.
29
Md. Pub. Saf. Code Ann. § 2-511(d).
30
Penal Code § 299(c)(1).
34
Md. Pub. Saf. Code Ann. § 2-511(a).
!
16
At the expungement hearing, former
arrestee must provide or show:
1. Written request for
expungement
2. Letter from prosecution
certifying basis of eligibility
3. Proof of written notice of
request sent to prosecuting
attorney and DNA lab
4. Court order verifying that 180
days have passed since the
arrestee initiated the
expungment process
5. No objection from prosecuting
attorney or Cal DOJ
31
It also appears the California DOJ and
the prosecuting attorney can object to
expungement even if all underlying
qualifications have been met.
32
The reviewing court has discretion to
deny or grant, and that decision is not
appealable.
33
The result of expungement policies like California’s that place the burden on the
former arrestee is that “the initial decision by the police to arrest that person turns out in
most cases to lead to the permanent collection and retention of the arrestee’s genetic
information, regardless of whether charges are dismissed or never brought at all.”
35
This
proves the truth of Justice Scalia’s insight that arrestee DNA collection statutes such as
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
31
Penal Code § 299(c)(2) (2004).
32
Buza 1231 Cal.App.4th at 1489.
33
Ibid.; Penal Code § 299(c)(1).
35
Joh, supra note 16, at 8.
!
17
California’s “manage[] to burden uniquely the sole group for whom the Fourth
Amendment’s protections ought to be most jealously guarded: people who are innocent
of the State’s accusations.” King, 133 S.Ct. at 1989 (Scalia, J., dissenting).
As the Court of Appeal recognized, “the differences between the California and
Maryland DNA laws significantly alter the weight of the governmental interests and
privacy considerations to be balanced in determining constitutionality under the Fourth
Amendment. Buza (2014) 231 Cal.App.4th 1446, 1464. Because California’s law
unreasonably burdens arrestees’ privacy interests with little corresponding benefit to the
government, especially compared to Maryland’s law, it violates the Fourth Amendment.
B. The Court of Appeal Properly Recognized California’s Constitutional
Protection Against Unlawful Searches and Seizures Precludes the
Warrantless Collection and Search of Arrestee DNA
As the Court of Appeal did, this Court may base its opinion solely on the
California Constitution and need not reach the Fourth Amendment issues. Although this
Court may look to Fourth Amendment case law to interpret parallel provisions in the state
constitution, California’s constitution is a “document of independent force,” and article I,
section 13 imposes a “more exacting standard.” People v. Brisendine (1975) 13 Cal. 3d
528, 545, 549-50; Cal. Const., art. I, §24 (“Rights guaranteed by this Constitution are not
dependent on those guaranteed by the United States Constitution”). In analyzing
California’s arrestee DNA collection law under the state constitution, this Court is
therefore not bound by the Supreme Court’s analysis in King and should not adopt it.
Given the myriad problems with the Court’s analysis in King and California’s explicit
!
18
constitutional right to privacy, this Court should find the California Constitution
independently protects arrestees from warrantless DNA collection.
1. King Failed to Recognize the Substantial Privacy Interest
Arrestees Maintain in Their Genetic Material
As the Court of Appeal recognized, “the King majority’s view of the purpose of
DNA testing [is] thoroughly inapplicable to the DNA Act, and the court’s view of the
information exposed through DNA testing too dismissive of scientific knowledge and
practical considerations.” Buza, 231 Cal.App.4th at 1468. King failed to recognize both
that there are multiple and repeated searches at issue in DNA collection and that arrestees
maintain a substantial privacy interest in their genetic material, even after the initial
cheek swab concludes.
In analogizing DNA collection to fingerprints, the Supreme Court in King focuses
its analysis of the arrestee’s privacy interest solely on what it described as a “gentle rub
along the inside of the cheek” to collect the DNA sample, King, 133 S.Ct. at 1979,
finding this minimal trespass failed to outweigh the state’s interest in “identifying” the
arrestee.
36
But as the Court of Appeal in this case and other judges have recognized, the
later and separate searches involved in DNA collection pose the greater threats to
privacy. See Buza, 231 Cal.App.4th at 1458 (“the second [search] occurs when the DNA
sample is analyzed and a profile created for use in state and federal DNA databases. The
latter search is the true focus of our analysis”); see also King v. State (Md. 2012) 42 A.3d
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
36
See King, 133 S.Ct. 1987 (Scalia, J. dissenting)(noting, “[t]he Court does not actually
say whether it believes that taking a person’s fingerprints is a Fourth Amendment search,
and our cases provide no ready answer to that question).
!
19
549, 575; United States v. Mitchell (3d Cir. 2011) 652 F.3d 387, 406-7 (“The second
‘search’ at issue is, of course, the processing of the DNA sample and creation of the DNA
profile”); United States v. Kincade (9th Cir. 2004) 379 F.3d 813, 873 (Kozinski, J.,
dissenting) (“it is important to recognize that the Fourth Amendment intrusion here is not
primarily the taking of the blood, but seizure of the DNA fingerprint and its inclusion in a
searchable database.”). By focusing solely on the cheek swab, King’s analysis excludes
any consideration of privacy interests implicated by the later searches, including the
arrestee’s interests in the DNA sample and profile and his or her family members’
privacy interests in their own genetic information.
37
“The overriding function of the Fourth Amendment is to protect personal privacy
and dignity against unwarranted intrusion by the State.” Schmerber v. California (1966)
384 U.S. 757, 767. This Court and the United States Supreme Court have repeatedly
“recognized a person’s right, under due process and search and seizure protections
provided by both state and federal Constitutions, to be free from unwarranted bodily
intrusions by agents of government.” People v. Melton (1988) 44 Cal. 3d 713, 737 (citing
cases). A Fourth Amendment intrusion is measured not solely by the physical trespass of
the cheek swab or inaccurate analogies to primitive techniques like fingerprinting, but by
the impact of the government’s entrance into what society considers a private sphere. See
Katz v. United States (1967) 389 U.S. 347, 353 (“the Fourth Amendment protects
people—and not simply ‘areas’” and “cannot turn upon the presence or absence of a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37
Discussed in detail infra Section 2.C.
!
20
physical intrusion into any given enclosure”); accord People v. Mayberry (1982) 31 Cal.
3d 335, 347. Further, as the Supreme Court noted in Riley, the quantity and quality of
information revealed to the government has constitutional significance. See Riley, 134
S.Ct. at 2489 (because “[c]ell phones differ in both a quantitative and a qualitative sense
from other objects that might be kept on an arrestee’s person[,]” a warrantless search
incident to arrest was prohibited). Once the initial DNA collection is disaggregated from
the subsequent searches of an arrestees genetic material it becomes clear that DNA
searches involve “intrusion into the widest spectrum of human privacy.” United States v.
Pool (9th Cir. 2010) 621 F.3d 1213, 1232 (Lucero, J., concurring) (opinion vacated, (9th
Cir. 2011) 659 F.3d 761).
Without question, the state’s initial physical intrusion to collect a DNA sample
from Mr. Buza—in this case, the buccal swab—is both a search and a seizure. See United
States v. Dionisio (1973) 410 U.S. 1, 8 (collection of blood from defendant involves both
a search and seizure); Skinner v. Ry. Labor Execs.’ Ass’n (1989) 489 U.S. 602, 616-17
(breath testing and urinalysis are searches); Cupp v. Murphy (1973) 412 U.S. 291, 295
(finger nail scrapings); Schmerber v. California (1966) 384 U.S. 757, 767-71 (blood);
People v. Robinson (2010) 47 Cal. 4th 1104, 1119 (blood). The extraction of Mr. Buza’s
DNA profile from that sample is a second search. See Skinner v. Railway Labor
Executives’ Ass’n (1989) 489 U.S. 602, 616 (recognizing that the “ensuing chemical
analysis of the sample to obtain physiological data” is also a search). Placing his DNA
profile into a state and national database and running the profile through CODIS for
“hits” is another search, and the same is true of every subsequent use of Mr. Buza’s DNA
!
21
profile for “matching.” See Kyllo v. U.S. (2001) 533 U.S. 27, 32 n.1 (“search” means
“[t]o look over or through for the purpose of finding something; to explore.” (quoting N.
Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th
ed.1989)); see also United States v. Kriesel (9th Cir. 2007) 508 F.3d 941,956 (B.
Fletcher, J., dissenting) (“the warrantless ‘search’ permitted by the 2004 DNA Act
extends to repeated searches of his DNA whenever the government has some minimal
investigative interest.”) (citing Kincade, 379 F.3d at 873 (Kozinski, J., dissenting)).
Moreover, the seizure of the DNA sample necessarily requires the seizure of a
person’s entire genome, raising another set of Fourth Amendment concerns.
38
The Fourth
Amendment was intended to prevent “general warrants”—“indiscriminate searches and
seizures conducted by petty officials with unfettered discretion” without judicial review
or individualized suspicion. People v. McKay (2002) 27 Cal.4th 601, 631; Ashcroft v. al-
Kidd (2011) 131 S.Ct. 2074, 2084. As a result, search warrants must “particularly
describe the things to be seized” to ensure that when it comes to “what is to be taken,
nothing is left to the discretion of the officer executing the warrant.” Marron v. United
States (1927) 275 U.S. 192, 196.
But allowing the wholesale, warrantless seizure of a person’s genome eviscerates
the concept of particularity; it is in essence a “general search” of a person’s genetic
history. It is the equivalent of the government seizing and searching an entire computer,
rummaging through all of its data—including data outside of the probable cause
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
38
California retains this genetic data indefinitely. Penal Code § 299.5(b).
!
22
justification—to find one specific file. See, e.g. United States v. Comprehensive Drug
Testing, Inc. (9th Cir. 2010) 621 F.3d 1162, 1177 (en banc) (per curiam) (“that over-
seizing is an inherent part of the electronic search process . . . calls for greater vigilance
on the part of judicial officers in striking the right balance between the government’s
interest in law enforcement and the right of individuals to be free from unreasonable
searches and seizures.”). Regardless of what the government does with the DNA sample
and the limits it places on the sample’s use,
39
all the highly personal data in it is in the
government’s possession, and outside the individual’s control. See Raynor, 99 A.3d at
772 (Adkins, J., dissenting) (noting privacy also includes the “right of a person to control
information about himself and intimate aspects of life”).
By disaggregating the searches and seizures involved in DNA collection, it is
clear, not only that DNA collection serves purely investigatory purposes and strays far
beyond the government’s stated need to “identify” the arrestee, but also that collection
poses real threats to privacy beyond the initial cheek swab. The fact that King failed to
recognize the substantial privacy interests arrestees have in their genetic material,
combined with the California Constitution’s greater protections for privacy and against
unlawful searches and seizures, suggest this Court should not follow King in determining
the constitutionality of California’s DNA collection law.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
39
California’s restrictions on accessing this data cannot cure an otherwise
unconstitutional search and seizure. See United States v. Stevens (2010) 559 U.S. 460,
480 (“We would not uphold an unconstitutional statute merely because the Government
promised to use it responsibly.”).
!
23
2. Adopting the Supreme Court’s Flawed Reasoning in King will
have Unintended Consequences that Extend Far Beyond
Collection of DNA from Arrestees
Two aspects of the Supreme Court’s reasoning in King will have consequences for
DNA collection outside of the arrestee context. First, as discussed above, in analyzing the
arrestee’s privacy interests, the Supreme Court equated a DNA profile with a fingerprint
and failed to recognize the privacy impacts of either the seizure of the arrestee’s DNA or
the repeated secondary searches involved in DNA collection. As already shown by two
subsequent cases in Maryland, this opens the door to DNA collection and search in any
context in which a fingerprint is collected. Second, the Court took a broad view of what it
means to “identify” someone, ultimately subsuming an “investigation” of the arrestee’s
possible past criminal behavior within the state’s need to “identify” him. But including
within “identification” information about an arrestee’s potential “unknown violent past,”
King, 133 S.Ct. at 1974, fails to place meaningful limits on what the government may
search for when it analyzes a DNA sample.
a. Failing to Recognize the Full Privacy Impact of DNA
Collection in this Context Will Allow the Government to
Collect a DNA Sample Whenever it May Currently Collect
a Fingerprint
Focusing solely on the minimal intrusiveness of the initial cheek swab rather than
much greater intrusion of the secondary searches—the extraction of a DNA profile, the
comparison of that profile against the database and future profiles, and the retention of
the DNA sample indefinitely—fails to place meaningful limits on a practice that could
!
24
one day impact all of us.
40
It not only opens the door to the government collecting DNA
under any circumstances in which a fingerprint may already be collected but it could
allow repeated searches of DNA collected without our knowledge or consent.
King’s impact is becoming clear as states attempt to apply its analysis in contexts
outside arrestee DNA collection. The Maryland Court of Appeals, the same state court
that first heard the King case, grappled with this issue in two cases in the past year. See
Raynor v. State (Md. 2014) 99 A.3d 753, and Varriale v. State (Md. 2015) 119 A.3d 824.
The result of the Maryland court’s analyses in these cases, as the dissenting judge noted
in Raynor, is that “the State may collect any person’s DNA, create a genetic profile, and
add it to the CODIS database, all without implicating, let alone respecting, any
constitutional protection.” Id. at 768 (2014)(Adkins, J. dissenting).
In Raynor, the Maryland court addressed the constitutionality of collecting and
profiling DNA inadvertently left behind by a person who was not under arrest and who
refused to consent to DNA collection. Glenn Raynor agreed to an interview at a police
station as part of a criminal investigation into a rape. The police did not have probable
cause to arrest him, and he refused to provide a DNA sample. After he left the station,
police swabbed the armrest of the chair where he had been sitting to collect his skin cells
without his knowledge. The police then extracted a DNA profile from the cells and used
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
40
See Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided
Court, 127 Harv. L. Rev. 161, 178 (2013) (“if DNA collection is also okay because DNA
is no more than a twenty-first century fingerprint that simply relates one aspect of
‘identity,’ then it is hard to read the Court’s opinion as rejecting collection of DNA in any
case where collection of fingerprints is presently allowed”).
!
25
it to connect him to the crime. Relying heavily on King’s analogy of a DNA profile to a
fingerprint, the Maryland Court of Appeals determined the only question in the case was
whether the extraction of a 13-loci CODIS DNA profile from the sample constituted a
“search.” As King had done, the court chose to ignore any privacy interest the defendant
may have had in the sample itself. The court relied on the Supreme Court’s explanation in
King that the ‘junk’ DNA contained in the CODIS profile is used only for identification
purposes, much like fingerprints, and therefore determined that Raynor “[did] not possess
a reasonable expectation of privacy in the identifying characteristics of his DNA.” 99
A.3d at 761-62, 765 (citing King, 133 S.Ct. at 1967). In fact, the court held, “because no
individual has a reasonable expectation of privacy in his or her identifying physical
characteristics[,] [i]t therefore matters not that, at the time of the analysis, [Raynor was] .
. . a ‘free person.’” Id. at 764 n.9 (emphasis added). As the dissenting Judge noted, the
result of the court’s holding is “that a person desiring to keep her DNA profile private,
must conduct her public affairs in a hermetically-sealed hazmat suit.” Raynor, 99 A.3d at
775 (Adkins, J. dissenting).
In Varriale v. State, decided just this past August, the Maryland Court of Appeals
once again relied on King’s fingerprint analogy to hold that a person lacks a Fourth
Amendment privacy interest in DNA collected by the police—even when the person,
who is not in police custody, consents to the initial DNA collection for one purpose
(investigation of one particular crime) but the police use it for a different purpose
(comparison to a vast database of unsolved crimes). (2015) 119 A.3d 824. The court
concluded that after the initial cheek swab to obtain the DNA sample, “the Fourth
!
26
Amendment was not triggered. Therefore, the State did not need a warrant or Varriale’s
additional or express consent in order to conduct further testing of his DNA or upload it
to the LDIS for comparison with other DNA profiles.” Varriale,119 A.3d at 838-39. The
dissenting judges in the case noted that the effect of this ruling is that “those who consent
to the taking of their biological materials, in an effort to help the police, will face a
certain knowledge that, even if not suspected or convicted of a crime, the police can, and
will, hold on to their DNA profile forever, and may compare it at any time for any or no
articulable reason.” Id. at 853 (Harrell, J. dissenting).
Raynor and Varriale show the logical extension of King’s determination that the
only Fourth Amendment triggering event is the minimal trespass of the initial cheek
swab. Given the greater protections for privacy, including informational privacy, offered
by the California Constitution, this Court should not allow California to follow down the
same path.
b. Reconceptualizing “Identification” to Include Investigative
Information Further Opens the Door to Abuse
King stated that the government’s interest in using DNA for identification was not
limited to, for example, knowing a person’s name, but also extended to “knowing ‘whom
they are dealing with.’” 133 S.Ct. at 1972 (quoting Hiibel v. Sixth Judicial Dist. Ct, 542
U.S. 177, 186 (2004)). The Supreme Court stated the arrestee’s “‘criminal history is a
critical part of his identity,’ just like any other information found in ‘public and police
records.’” Ibid. at 1972. However, as Professor Erin Murphy notes, if the government’s
“interest in identity is capacious enough to include information about ‘a record of
!
27
violence or mental disorder,’” it could, in the future, allow the government to include in
it’s “identification” analysis a search of the arrestee’s DNA to discover whether he or she
possessed a “pedophile gene” or a “violence gene,” if researchers ever found either of
those genes.
41
Despite California’s protests to the contrary, such a search would be
prevented by neither Penal Code § 295.1, which states that DNA analysis may only be
performed “for identification purposes,” nor Penal Code § 295.2’s protections against
using arrestee or offender DNA for genetic testing. Section 295.2 only precludes the state
from mining the DNA and forensic identification database and data bank “as a source of
genetic material for testing, research, or experiments . . . to find a causal link between
genetics and behavior or health.” It does not necessarily preclude the state from searching
DNA once that causal link to behavior or health has already been made—if that link is
helpful to the state in “identifying” the arrestee.
The Maryland court’s rulings in Raynor and Varriale show the logical extension
of King’s analysis. But a holding that our constitutional rights to be free from unlawful
searches and seizures creates no meaningful limits on the government’s ability to collect
and repeatedly search our DNA—and search our DNA for information about us beyond
just who we are—presages a future in which every person’s DNA could be collected,
sampled, and profiled, not only without individualized suspicion of wrongdoing but
without a person’s knowledge and despite his refusal to consent.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
41
Murphy, supra note 40, at 180.
!
28
II. DNA COLLECTION IMPLICATES SIGNIFICANT PRIVACY
INTERESTS
Personal privacy interests outweigh California’s interests in the collection of DNA
from arrestees. Numerous judges have recognized the threat to privacy posed by ever-
expanding DNA collection and analysis. See, e.g., Buza 231 Cal.App.4th at 1468 (“DNA
contains an extensive amount of sensitive personal information” (citation omitted)); State
v. Medina (Vt. 2014) 102 A.3d 661, 682 (DNA “provide[s] a massive amount of unique,
private information about a person that goes beyond identification of that person”); King,
133 S.Ct. at 1989 (Scalia, J. dissenting) (noting the “vast (and scary) scope” of the
majority’s holding); Raynor, 99 A.3d at 771 (Adkins, J., dissenting) (DNA “is immensely
personal and private, and deserves the staunchest protection under the Fourth
Amendment”); Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049, 1079 (W. Fletcher, J.,
dissenting) (“DNA testing constitutes a greater infringement on privacy than
fingerprinting”); United States v. Mitchell (3d Cir. 2011) 652 F.3d 387, 424 (Rendell, J.,
dissenting) (courts “should not be blind to the potential for abuse” with DNA analysis
and “concerns are legitimate and real, and should be taken into account”); United States
v. Kincade (9th Cir. 2004) 379 F.3d 813, 842 n.3 (Gould, J., concurring) (“the advance of
science promises to make stored DNA only more revealing in time”).
Three aspects of the expanding use of DNA technology are relevant to the Court’s
analysis here: (1) the breadth and depth of private information available in DNA; (2) the
clear trend toward cheaper and faster DNA collection, analysis, and storage driving the
expansion of DNA collection and use; and (3) the very real threats to liberty posed by
!
29
excessive collection. Taken together, these show that the potential for harm from limitless
DNA collection is much greater than any other law enforcement technology previously
addressed by the courts.
A. DNA Contains a Person’s Most Private and Personal Information
A DNA sample—taken from a cheek swab—contains a person’s entire genetic
makeup. As Judge Reinhardt noted in United States v. Kriesel, any case where the state
has collected a full DNA sample must recognize the issues are not limited to the retention
of the DNA profile, but also include “the retention for at least the remainder if an
individual’s lifetime of his full genetic code.” (9th Cir. 2013) 720 F.3d 1137, 1150
(Reinhardt, J. dissenting). It is a mistake to view a DNA sample as simply a high-tech
fingerprint. No one calls a fingerprint the “blueprint of our existence.” No one decides
whether to continue a pregnancy or undergo a double mastectomy based on a fingerprint
test. Researchers do not pursue inexpensive whole-fingerprint tests so that preventive and
curative interventions can be tailored to individual patients. Scientists do not race to
unlock the fingerprint’s clues about predisposition toward mental illness, violence, sexual
deviance, or addiction. But all of this is true of DNA.
Unlike a fingerprint, the private and intensely personal information contained in
our DNA can reveal where our ancestors came from, who we are related to, whether we
are likely to suffer from genetically-determined diseases, and possibly even our
behavioral tendencies and sexual orientation.
42
California retains this genetic data
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
42
See supra note 2.
!
30
indefinitely, Penal Code § 299.5(b), keeping it in the government’s hands and out of the
individual’s control.
A DNA Profile, extracted from the DNA sample raises its own privacy issues,
both for the person who submitted the sample and for his or her family members.
Although California argues that an arrestee’s DNA profile contains no more information
than a fingerprint, this is incorrect. While the intrusiveness of a fingerprint is limited to
cataloging the pattern of loops and whorls on a person’s finger, with just the 13 CODIS
core loci, the state can infer relatedness and may, in the future, be able to infer additional
information.
Although the alleles that make up a CODIS profile are non-coding, they are
linked
43
to specific regions within our DNA that influence physical traits or disease
predispositions. Especially when combined with other publicly-available genetic data,
44
CODIS information may make it possible to infer a person’s physical traits or propensity
for disease from his profile. Access to a profile and information about the profile owner’s
relatives would, if any near relatives had their full genomic data in a public database,
enable inferences about the profile owner’s genetic makeup, including any disease-
causing variant that lies in the third of the human genome co-inherited (roughly within 50
million base pairs) with a CODIS marker. Tens of thousands of humans have already had
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
43
“Linked” in the genetic sense, meaning co-inherited with high probability.
44
Public sources for genetic data include the many online genetic genealogy databases
and other public health sources such as the National Institutes of Health’s GenBank, “an
annotated collection of all publicly available DNA sequences.” See GenBank Overview,
Nat’l Center for Biotech. Info., Nat’l Insts. of Health, http://www.ncbi.nlm.nih.gov/genba
nk/.
!
31
their genomes completely sequenced,
45
and close to two million have voluntarily
contributed DNA to one or more of the three largest commercial DNA databases.
46
And
these numbers are increasing rapidly as the costs of sequencing decline.
47
This means that
a substantial, and ever growing, fraction of the population has a fourth degree or closer
relative whose genetic information is available in public or private databases.
It is highly likely the government will engage in this kind of data aggregation and
data mining. Several federal agencies have centers devoted to analyzing publicly
available data to look for trends and specific threats.
48
And researchers have recently
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
45
See Genomes by the Thousand, Nature (Oct. 28, 2010), http://www.nature.com/news/2
010/101027/pdf/4671026a.pdf; see also Victoria Turk, The UK’s Plan to Sequence
100,000 Human Genomes, Motherboard (July 17, 2015),
http://motherboard.vice.com/read/the-uks-plan-to-sequence-100000-human-genomes.
46
National Geographic, The Genorgraphic Project,
https://genographic.nationalgeographic.com/ (noting 742,652 participants as of the date
of the filing of this brief); AncestryDNA Database Exceeds 400,000 Genotyped Members,
Ancestry.com (April 30, 2014)
http://blogs.ancestry.com/ancestry/2014/04/30/ancestrydna-database-exceeds-400000-
genotyped-members/; Ron Winslow, 23andMe to Mine Genetic Database for Drug
Discovery, Wall St. J. (March 12, 2015) http://www.wsj.com/articles/23andme-to-use-
genetic-database-for-drug-discovery-1426161601 (noting 23andMe has “accumulate[d]
genetic information on 850,000 customers”).
47
Ibid.; DNA Sequencing Costs, National Human Genome Research Institute,
http://www.genome.gov/images/content/cost_genome.jpg (graph showing sequencing
costs declining from $100 million in 2001 to less than $10,000 today).
48
See, e.g., Darwin Bond Graham & Ali Winston, The Real Purpose of Oakland's
Surveillance Center, East Bay Express (Dec. 18, 2013)
http://www.eastbayexpress.com/oakland/the-real-purpose-of-oaklands-surveillance-
center/Content?oid=3789230 (noting the plans for Oakland’s Domain Awareness Center
included plans to transmit into a centralized hub “untold number of public and private
video cameras from businesses, traffic intersections, public housing properties, highways
and onramps, transit stations, sports facilities, and public schools” and to combine that
date with “automated license-plate reader data, ShotSpotter gunshot detectors, and social
!
!
32
engaged in similar data aggregation to re-identify anonymized genetic samples—
determining not just the name of the person who submitted the sample in the first place
but also his entire family—“in total . . . breach[ing] the privacy of nearly 50 individuals”
from three original samples.
49
Those researchers concluded, “[t]his study shows that data
release, even of a few markers, from one person can spread through deep genealogical
ties and lead to the identification of another person who might have no acquaintance with
the person who released his genetic data.” Ibid. Although standard CODIS DNA profiles
currently lack the Y-chromosome information the researchers used for re-identification,
California re-tests offender DNA samples for Y-STR type once a familial search of its
database identifies a partial match.
50
The fact that the government is able to conduct familial searches using only the
CODIS core loci contained in the DNA profile demonstrates the additional privacy
impact DNA collection has on an arrestee’s family members—people whose expectation
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
media feeds”). See also Nate Berg, “Predicting crime, LAPD-style,” The Guardian (June
25, 2014) http://www.theguardian.com/cities/2014/jun/25/
predicting-crime-lapd-los-angeles-police-data-analysis-algorithm-minority-report
(describing similar system in Los Angeles).
49
Melissa Gymrek, et al., Identifying Personal Genomes by Surname Inference, 339
Science 321, p.322 (Jan. 18, 2013) available at http://data2discovery.org/dev/wp-
content/uploads/2013/05/Gymrek-et-al.-2013-Genome-Hacking-Science-2013-Gymrek-
321-4.pdf.
50
Information Bulletin: DNA Partial Match (Crime Scene DNA Profile to Offender)
Policy, Cal. Dept. of Justice (Oct. 27, 2008), http://ag.ca.gov/cms_attachments/press/pdfs
/n1548_08-bfs-01.pdf. Including this information in a CODIS profile may become
routine. The FBI is exploring including Y STR and mitochondrial DNA in CODIS to
determine patrilineal and matrilineal relationships. See CODIS—The Future, FBI,
https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_future.
!
33
of privacy should not be diminished merely because they are related to someone who was
once in police custody.
Because we inherit the twenty-six alleles that make up a CODIS profile directly
from our biological parents, “there is a significant probability that two people who share
biological ties will also share a large number of alleles in common.”
51
California
expressly authorizes and conducts familial searches on DNA collected from those
convicted of a crime.
52
Although California currently does not conduct familial searches
on arrestee DNA, no California statute prohibits this practice. Buza, 231 Cal.App.4th at
1463.
53
As discussed further below, familial searching exposes an arrestee’s family
members to risks to their liberty interests that they would not face if the arrestee’s DNA
were not in a database in the first place. They should not face this hazard, given that their
own DNA would not be eligible for inclusion in the database under current law.
54
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
51
Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L.
Rev. 291, 295 (Dec. 2010). See also id. at 328-329 (questioning efficacy of familial
search based on limited examples of success and “an equal number of sensational stories
revealing laboratory corruption or malfeasance or even honest mistakes that result in
erroneous arrest, prosecution, or conviction on the basis of DNA evidence.”)
52
See also State of California Department of Justice, Office of the Attorney General, BFS
DNA Frequently Asked Questions: California’s Familial Search Policy,
https://oag.ca.gov/bfs/prop69/faqs.
53
Ibid.
54
Murphy, supra note 51, at 326 (noting “familial searches effectively add the profiles of
relatives to the database, even though they are not eligible for inclusion according to the
established legal criteria”).
!
34
These threats to privacy will only increase as more genetic data becomes publicly
available, more research is conducted on that genetic data, and the number of alleles
included in a CODIS profile increases—which the FBI is already considering.
55
B. As the Cost of DNA Processing Drops, the Government is Already
Expanding Its Collection and Use of DNA
Several judges have rightly warned of the “slippery slope toward ever-expanding
warrantless DNA testing.” Pool, 621 F.3d at 1235 (Schroeder, J., dissenting); see also
King, 133 S.Ct. at 1989 (Scalia, J., dissenting); Mitchell, 652 F.3d at 429 (Rendell, J.,
dissenting). Collection, sharing and analysis of DNA profiles has increased significantly
as technological advances, reduced costs, and policy changes enable even the smallest
local police department to create and maintain its own DNA database.
56
After California began collecting DNA from arrestees, the number of profiles in
its state database increased dramatically.
57
A 2010 report noted that, including
California’s offender database, the state has “one of the most inclusive DNA databases in
the country, . . . [comprising] about 3.5% of its population.”
58
Due in part to the breadth
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
55
See Planned Process and Timeline for Implementation of Additional CODIS Core
Loci, FBI, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/planned-process-
and-timeline-for-implementation-of-additional-codis-core-loci.
56
Joseph Goldstein, Police Agencies Are Assembling Records of DNA, N.Y. Times (June
12, 2013) http://www.nytimes.com/2013/06/13/us/police-agencies-are-assembling-
records-of-dna.html.
57
See, e.g., DNA Frequently Asked Questions: Effects of the All Adult Arrestee Provision,
Cal. Bureau of Forensic Servs., http://oag.ca.gov/bfs/prop69/faqs (noting that after
California’s arrestee DNA collection law passed, the average DNA submission rate
doubled from 12,000 per month in 2008 to 26,500 per month in 2009).
58
Jeremiah Goulka, et al., Toward a Comparison of DNA Profiling and Databases in the
United States and England 18, RAND (2010)
!
!
35
of its DNA collection laws, California’s databank is the largest state database in the
country
59
and the third largest in the world.
60
But despite the size of its database,
California “is anomalous in the relatively low number of investigations aided.”
61
And in
fact, research has repeatedly shown that, notwithstanding anecdotal claims by advocates
to the contrary, bigger is not better when it comes to arrestee and offender DNA
databases. The ability of the police to solve crimes using DNA is “more strongly related
to the number of crime-scene samples than to the number of offender profiles in the
database.”
62
“[S]tudy after study has shown that improving the collecting of DNA from
crime scenes, not from known offenders [or from arrestees], would make the real
difference in solving cases.”
63
Using data released as part of separate litigation in federal
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
http://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR918.pdf
(hereinafter RAND Report).
59
Id. at 18.
60
Brown Announces Elimination of DNA Data Bank Backlog (Sept. 10, 2007)
https://oag.ca.gov/news/press-releases/brown-announces-elimination-dna-data-bank-
backlog.
61
RAND Report, supra note 58 at 19.
62
Id. at 1 (“database matches are more strongly related to the number of crime-scene
samples than to the number of offender profiles in the database.”) See also Victor Toom,
Forensic DNA Databases in England and the Netherlands: Governance, Structure and
Performance Compared, New Genetics and Society 31(3) (2012)
https://www.academia.edu/515387/Forensic_DNA_databases_in_England_and_the_Neth
erlands_governance_structure_and_performance_compared_2012_.
63
Erin Murphy, Inside the Cell, (2014) pp. 271-74.
!
36
court challenging California’s arrestee DNA collection law, Researchers showed this to
be true right here in California.
64
With surveillance, reduced costs and efficiency are often detrimental to privacy.
The Supreme Court recognized this in Jones when it considered the constitutionality of
tracking a car via a GPS device for 28 days. Almost thirty years earlier, the Court held
there was no expectation of privacy in public, secure in the fact the technique at issue
(primitive police “beepers” used to follow suspect cars) was so costly it was used only in
limited circumstances. See e.g., United States v. Knotts (1983) 460 U.S. 276, 283-84
(dismissing concerns over constant surveillance by finding “reality hardly suggests
abuse” and reserving right to consider “dragnet-type law enforcement practices” when
they occur) (quotations omitted). But in Jones, five justices expressed concern that newer
technologies like GPS tracking devices, which make “available at a relatively low cost
such a substantial quantum of intimate information about any person whom the
Government, in its unfettered discretion, chooses to track,” could “alter the relationship
between citizen and government in a way that is inimical to democratic society.” Jones,
132 S.Ct. at 956 (Sotomayor, J., concurring) (quotations and citation omitted); see also
id. at 963 (Alito, J., concurring) (“availability and use of . . new devices will continue to
shape the average person’s expectations about . . . privacy”). The same concerns were
present in Riley, where the Court found a cell phone “not only contains in digital form
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
64
See Brief of 14 Scholars of Forensic Evidence as Amici Curiae, p. 8, Maryland v. King
(2013) 133 S.Ct. 1958 (citing data released from Haskell v. Harris, 669 F.3d 1049 (9th
Cir. 2012)).
!
37
many sensitive records previously found in the home; it also contains a broad array of
private information never found in a home in any form—unless the phone is.” Riley, 134
S.Ct. at 2491.
The concerns about GPS technologies and the prevalence of cell phones making
government surveillance cheaper and easier apply equally to DNA. When forensic DNA
testing began 30 years ago, testing was expensive and required a blood sample. Labs
needed large amounts of biological evidence from a crime scene to develop a DNA
profile.
65
For these reasons DNA was rarely collected. Analyzing DNA continued to be
costly twenty years ago, when several states and the FBI began maintaining DNA indexes
for law enforcement purposes.
66
Today, however, new technologies “make it possible to
sequence the whole exome or genome of a person at a price that is affordable for some
health-care systems.”
67
A 2010 report prepared for the U.S. Department of Defense
concluded that with improved technology “DNA sequencing costs will no longer be a
factor limiting personal human genomics technologies.”
68
And a recent report from the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
65
See Stephen Mercer and Jessica Gabel, Shadow Dwellers: The Underregulated World
of State and Local DNA Databases, 69 N.Y.U. Ann. Surv. Am. L. (2014) 639, 645-46.
66
See, e.g., CODIS Brochure, FBI, available at http://www.fbi.gov/about-
us/lab/biometric-analysis/codis/codis_brochure (FBI’s National DNA system established
in 1994); see also The $100 Genome: Implications for the DoD, JASON, The MITRE
Corporation (2010) , at 2, available at www.fas.org/irp/agency/dod/jason/hundred.pdf.
67
Carla G van El, et al., Whole-Genome Sequencing in Health Care (2013) 21 European
J. Human Genetics 580-84, available at
http://www.nature.com/ejhg/journal/v21/n1s/full/ejhg201346a.html.
68
See The $100 Genome, supra note 61, at 2. See also id. at 12 (predicting that at costs
below $1,000 per genome, many “applications of DNA sequencing become cost
effective” including research access to “thousands or even millions of human genomes to
!
!
38
National Human Genome Research Institute notes that the sharp decline in the cost of
sequencing the human genome has far outpaced Moore’s Law; as of July 2015, the cost
of sequencing an entire human genome is now only $1,363.00—as compared to nearly
$100 million just 14 years ago.
69
The reduced cost of genomic sequencing has allowed scientists to conduct
research to learn not only which of our genes may be linked to diseases or medical
conditions but also to discern which genes may be tied to other phenotypic characteristics
such as eye and hair color, height, and racial or ethnic ancestry. Using this information,
scientists have started to predict what a person might look like—or “‘reverse-engineer’
DNA into a physical profile”
70
—using only a small sample of the person’s genetic
material. One lab, funded by the Department of Defense, claims it can “accurately
predict[] genetic ancestry, eye color, hair color, skin color, freckling, and face shape in
individuals from any ethnic background, even individuals with mixed ancestry.”
71
Although these techniques could exacerbate racial profiling,
72
and, if misused, would
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
seek correlations between genotypes and phenotypes,” patient access to genome
sequencing along with standard medical laboratory tests, and [e]ven full genome
sequencing offered as a service by “web-based genetic testing service companies . . . to
gather and dispense medical and ancestry information, and provide genetic counseling”).
69
Kris Wetterstrand, DNA Sequencing Costs: Data from the NHGRI Genome Sequencing
Program, NIH http://www.genome.gov/sequencingcosts/;
http://www.genome.gov/pages/der/sequencing_costs_oct2015.xlsx
70
Parabon Snapshot, https://snapshot.parabon-nanolabs.com/.
71
Ibid.
72
Andrew Pollack, Building a Face, and a Case on DNA, N.Y. Times (Feb. 23, 2015)
http://www.nytimes.com/2015/02/24/science/building-face-and-a-case-on-dna.html.
!
39
have a very real impact on personal privacy, several law enforcement agencies are
already using them.
73
The monetary and practical costs of processing DNA samples to obtain a profile
have also decreased. With newer, more sensitive testing technology, police no longer
need large quantities of genetic material to produce a forensic profile; they “can collect
and analyze trace amounts of ‘touch’ DNA from surfaces like doorknobs, steering
wheels, or windows.”
74
The federal government also has invested substantial funds to
develop Rapid DNA analyzers—portable machines about the size of a laser printer that
can be used by non-scientists outside a lab.
75
These machines can produce a DNA profile
in 60 minutes or less for as little as $100 per sample
76
and are already used by law
enforcement in Florida and Arizona.
77
Given the convenience and speed of Rapid DNA and the portability of the testing
equipment, its use could soon become a routine part of traffic stops. One manufacturer
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
73
Ellen McRae Greytak, DNA Phenotyping and Kinship Determination, Parabon
NanoLabs, p. 19 https://www.afcea.org/events/documents/Greytak22Sep1100.pdf
74
Mercer, supra note 59, at 646.
75
See Jennifer Lynch, Rapid DNA: Coming Soon to a Police Department or Immigration
Office Near You, EFF (Jan. 6, 2013), https://www.eff.org/deeplinks/2012/12/rapid-dna-
analysis. Records are available at https://www.eff.org/file/36203#page/2/mode/1up, 9-10.
76
Portable DNA Analyzer, NEC, http://www.nec.com/en/global/solutions/biometrics/
products/portable_dna_analyzer.html. See also Chris Miles, DHS Rapid & Low-Cost
Biometrics, p. 10, available at https://www.eff.org/files/filenode/2011_dhs-
s_t_rapiddna_foia_records_25-dhs_rapiddna_ppt_presentation.pdf.
77
See, White Paper: The Case for Rapid DNA, IntegenX (2012), http://integenx.com/wp-
content/uploads/2012/05/The-Case-for-Rapid-DNA.pdf; Revolutionary DNA Testing
Instruments Now Available to DPS Detectives, Arizona Dep’t of Public Safety (May 13,
2014), http://www.azdps.gov/Media/News/View/?p=477.
!
40
has already designed its technology to be used in the trunk of a squad car.
78
Rapid DNA
results cannot yet be entered into CODIS,
79
but this may encourage the 500+ law
enforcement agencies in California
80
to create underregulated local DNA databases, as
Orange County, California has already done.
81
Without hard limits on DNA collection,
these tools could easily be used (and abused) to collect DNA even outside of the booking
context, based on little or no real suspicion of criminal activity.
Governments are also spending millions of dollars to expand other DNA
collection and testing capabilities and to increase database capacity. In 2006, the federal
Department of Justice awarded a multi-year, multi-million-dollar contract to Unisys to
develop “Next Generation CODIS,” which would expand the “scalability and flexibility”
of CODIS and include a “highly sophisticated search engine technology that will greatly
accelerate the DNA matching process[.]”
82
Since then, the federal DOJ has been rolling
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
78
Portable DNA Analyzer, NEC,
http://www.nec.com/en/global/solutions/biometrics/products/pdf/catalogue.pdf.
79
See FAQs on the CODIS Program and the National DNA Index System, FBI
http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet; but
see also H.R. No. 320 - Rapid DNA Act of 2015, https://www.congress.gov/bill/114th-
congress/house-bill/320/text (which would amend the DNA Identification Act of 1994 to
allow profiles generated using Rapid DNA technology to be entered into CODIS).
80
Brian A. Reeves, Census of State and Local Law Enforcement Agencies, 2008 (2011)
15, DOJ BJS, http://www.bjs.gov/content/pub/pdf/csllea08.pdf (Table 6: State and local
law enforcement agencies and full-time employees, by state, 2008).
81
Stephen Mercer & Jessica Gabel Cino, Shadow Dwellers: The Underregulated World
of State and Local DNA Databases, 69 N.Y.U. Ann. Surv. Am. L. 639, 670-71 (2014).
82
See Press Release, FBI Contracts with Unisys for Development and Deployment of
Next-Generation Combined DNA Index System, Business Wire (Oct. 19, 2006),
http://www.businesswire.com/news/home/20061019005514/en/FBI-Contracts-Unisys-
Development-Deployment-Next-Generation-Combined.
!
41
out improvements to CODIS,
83
including expanding CODIS capabilities in terms of DNA
match technologies and kinship searches.
84
The federal DOJ has stated it plans to link
CODIS data to the extensive biometric and biographic data stored in its vast Next
Generation Identification database.
85
Given the current uncertainty surrounding DNA collection laws, it is unclear what
limits will be put in place to govern the use and prevent the abuse of these new tools.
C. Excessive DNA Collection Poses Very Real Threats to Liberty
Excessive DNA collection and the unnecessary retention and storage of DNA in
databases subject to repeated searches pose very real threats to the liberty interests of the
former arrestee and his or her family members.
Sloppy policing, systemic DNA lab problems,
86
and even the increasing sensitivity
of DNA testing tools have led to false identifications that can only occur if an innocent
person’s profile is already in a database. In San Jose, Lukis Anderson spent five months
in jail after a database search linked his DNA to DNA found on the fingernails of a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
83
See generally Exhibit 300: Capital Asset Summary: FBI Combined DNA Index System
(CODIS), UII 011-000002501, Dept. of Justice (Aug. 1, 2012), https://it-
2013.itdashboard.gov/investment/exhibit300/pdf/011-000002501.
84
Ibid.; see also CODIS—The Future, FBI, available at http://www.fbi.gov/about-
us/lab/codis/codis_future (noting re-architecture of CODIS will allow it “to include
additional DNA technologies” such as Y-STR and mtDNA, both of which can
definitively determine kinship along paternal and maternal lineages).
85
Valerie Evanoff, FBI Next Generation Identification (NGI) DNA Study, Global Identity
Summit (Sept. 17, 2014) http://www.biometrics.org/bc2014/presentations/Wed_1819_Ev
anoff_1540.pdf.
86
See, e.g., Audit of Compliance with Standards Governing combined DNA Index System
Activities at the County of Santa Clara District Attorney’s Crime Laboratory, DOJ OIG
(2012), available at https://www.oig.justice.gov/reports/2012/g9012004.pdf .
!
42
murder victim—although Anderson had been hospitalized when the murder occurred.
87
In Sacramento, Shawn Ponce was falsely arrested based on his DNA and jailed for five
days for two crimes he could not have committed.
88
In England, David Butler spent eight
months in jail after a database search falsely matched his DNA to that found on a murder
victim—despite evidence establishing his innocence.
89
Another British citizen was falsely
accused of murdering a woman in Italy based solely on DNA.
90
These errors may occur for a variety of reasons, including the unreliability of some
crime scene DNA. Although forensic investigators are now able to detect, collect, and
analyze trace amounts of DNA at a crime scene, these samples may contain genetic
material from more than one person
91
and could even contain DNA from someone who
was never at the crime scene. For example, in the case of Lukis Anderson, mentioned
above, Santa Clara County prosecutors believe the paramedics who treated Mr. Anderson
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
87
Henry Lee, How Innocent Man’s DNA Was Found at Killing Scene, SF Gate (June 26,
2013), http://www.sfgate.com/crime/article/How-innocent-man-s-DNA-was-found-at-
killing-scene-4624971.php.
88
See U.S. v. Ponce (E.D. Cal. 2007) Mag.No. 07-00215-DAD, (E.D. Cal. 2007) SW 07-
2000-KJM, (C.D. Cal. 2007) Mag.No. 07-0199.
89
See Hannah Barnes, DNA Test Jailed Innocent Man for Murder, BBC (Aug. 31,
2012)), http://www.bbc.co.uk/news/science-environment-19412819.
90
Linda Geddes, DNA Super-Network Increases Risk of Mix-Ups, New Scientist (Sep. 5,
2011), http://www.newscientist.com/article/mg21128285.500-euro-dna-treaty-risks-false-
positives.html.
91
See Mercer, supra note 59, at 646 (“the relevance and reliability of low-level DNA
profiles from surfaces likely to contain DNA from more than one person can be very
uncertain.”)
!
43
for intoxication transferred his DNA to the murder victim when they responded to the
crime scene hours after dropping Anderson off at the hospital.
92
Low copy number DNA—the analysis of crime scene DNA containing only a few
cells
93
—and the reliance on partial matching techniques can also result in false matches
—implicating someone for a crime they didn’t commit. “The small quantity of starting
material [inherent in low copy number DNA] in conjunction with the increased number
of rounds of PCR can result in an increase in ‘stochastic effects,’ which are random errors
that create inaccuracies in DNA testing.” United States v. Morgan (S.D.N.Y. 2014) 53
F.Supp.3d 732, 736. Because of its increased sensitivity, low copy number DNA also
runs a greater risk of contamination—of extraneous DNA being included and amplified
in the sample—both in the field and in the lab.
94
Partial matching—where a forensic profile matches an arrestee or offender profile
on some but not all of the 26 alleles—may occur if a low-quality crime scene sample
doesn’t have enough information to reliably discriminate between people who may be
potential contributors. Although in the past researchers believed it was “exceedingly rare”
for unrelated individuals to share the same markers at multiple loci in the standard
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
92
Lee, supra note 83.
93
Low Copy Number DNA Cases, Denver DA,
http://www.denverda.org/DNA/Low%20Copy%20DNA%20Profiling%20Cases.htm.
94
See Peter Gill, Application of Low Copy Number DNA Profiling, Croatian Medical
Journal 42(3): 229-232 (2001), http://www.denverda.org/dna_documents/
lcn%20dna%20article%20gill.pdf.
!
44
CODIS profile, now it appears this is more common than previously thought.
95
Analysts
in Arizona’s state crime lab found, after studying the state’s database of only 65,493
people, that there were 122 sets of people who shared the same genetic markers at nine of
the 13 loci, and “some even shared markers at 10, 11 or 12 places.”
96
The United
Kingdom’s 2005-2006 National DNA Database Annual Report noted that, after
attempting to match forensic profiles against its offender database, it had multiple
potential suspects for 50,434 out of 182,612 crime scene profiles. This was “largely due
to the significant proportion of crime scene sample profiles that are partial.”
97
The problems inherent in low copy number DNA and partial matching may be
compounded by improper DNA analysis and lab mistakes. “When there is uncertainty
about the number of contributors to a crime scene DNA sample and whether all of the
data is complete, a forensic analyst’s interpretation of the data to identify profiles of the
contributors becomes prone to subjective assessments, bias, and error.”
98
This came to
light in San Francisco in 2010, when an FBI audit of the city’s crime lab “found that out
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
95
Erin Murphy, The Dark Side of DNA Databases, The Atlantic (Oct. 8, 2015)
http://www.theatlantic.com/science/archive/2015/10/the-dark-side-of-dna-
databases/408709/.
96
Ibid.
97
National DNA Database Annual Report 2005-2006, (2006) at 35, Nat’l DNA Database
Strategy Bd., (U.K.), available at http://www.genewatch.org/uploads/
f03c6d66a9b354535738483c1c3d49e4/DNA_report2005_06.pdf.
98
Mercer, supra note 65, at 676 (citing 2011 study in which seventeen qualified DNA
analysts from accredited crime laboratories were asked to evaluate DNA data that had
actually been used to prove a Georgia man guilty of participating in a gang rape; twelve
excluded the Georgia man as a possible contributor, four found the samples to be
uninterperetable, and one found the man was a possible contributor to the forensic
mixture of DNA).
!
45
of 100 samples of evidence the lab had submitted to the state and federal offender
tracking database, seven were not up to standard and should be removed.”
99
Then in
December 2014, a technician from the same lab made assumptions about missing data
from a low quality crime scene sample and passed the resulting genetic profiles off as
complete, perhaps incorrectly implicating a defendant whose DNA was already in the
state database. After the mistake came to light, authorities had to review 1,400 criminal
cases that were prosecuted in part based on DNA work done by the same technician.
100
These lab problems are not limited to California. In New York in 2013, the
medical examiner’s office reviewed 800 rape cases where “critical DNA evidence may
have been mishandled or overlooked by a lab technician, resulting in incorrect reports
being given to criminal investigators.”
101
And earlier this year federal prosecutors in
Washington DC stopped sending DNA evidence to the city’s crime lab after outside
experts found numerous lab mistakes. “In one case, the crime lab concluded that DNA on
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
99
Jaxon Van Derbeken, Technician, Boss in SFPD Lab Scandal Flunked DNA Skills
Exam, San Francisco Chronicle (March 31, 2015), http://www.sfgate.com/bayarea/article/
Technician-boss-in-S-F-police-lab-scandal-6169230.php; see also Jaxon Van Derbeken,
San Francisco police crime lab accused of cover-up, San Francisco Chronicle (Dec. 4,
2010), http://www.sfgate.com/news/article/San-Francisco-police-crime-lab-accused-of-
cover-up-2454525.php (noting in 2008, the crime lab switched DNA test vials and then
altered records to cover up the mistake).
100
Ibid.
101
Joseph Goldstein, New York Examines Over 800 Rape Cases for Possible Mishandling
of Evidence, N.Y. Times (Jan. 10, 2013),
http://www.nytimes.com/2013/01/11/nyregion/new-york-reviewing-over-800-rape-cases-
for-possible-mishandling-of-dna-evidence.html.
!
46
the magazine of a gun might belong to one defendant, while an outside expert ruled that it
definitely wasn’t from that defendant.”
102
Ultimately each of these issues with crime scene evidence—whether due to lab
analyst error, partial match problems, or low copy number DNA—impacted real people
whose DNA was already in an offender or arrestee database. These people faced not only
the very-real indignity of living under a cloud of suspicion until and possibly after their
names were cleared,
103
but also the possible deprivation of their physical liberty by being
forced to spend time in jail solely on the basis of a false DNA match.
Familial searches raise additional liberty concerns; they can turn family members
into “genetic informant[s]” on each other.
104
In Louisiana, a rape victim provided her
DNA to help convict her rapist, but law enforcement used it instead to convict her brother
of other crimes.
105
Familial searching also leads to false positives; researchers analyzing
California’s familial search protocol noted that, because the protocol uses only limited
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
102
Rebecca Cohen, Forget CSI: Real-Life Crime Labs Are a Total Mess, Mother Jones
(Apr. 20, 2015), http://www.motherjones.com/politics/2015/04/why-do-crime-labs-keep-
screwing-dna-tests; see also Erin Murphy, The New Forensics: Criminal Justice, False
Certainty, and the Second Generation of Scientific Evidence 95 Calif. L. Rev. 721, 755
(2007) (noting several scandals that “have revealed systemic problems in a number of
"flagship" DNA laboratories and horrific tales of false-positive DNA matches”).
103
See Murphy, supra note 51, at 314 (“The worst indignity of an investigation can be
living under a cloud of suspicion; even mere suspicion, quickly dispelled, has the
potential to disrupt a career, destroy a marriage, or ruin a life.”).
104
See Mercer supra note 65, at 640.
105
Ibid.
!
47
data, there is “a substantial probability” of error—that a more distant relative such as a
first cousin will be falsely identified as a first-degree relative such as a full sibling.
106
It is also quite possible that a familial search is likely to “return a number of
persons that are not in fact related to the source”
107
—even where more data than the 26
alleles in a CODIS profile are available. Last year, Idaho investigators attempted to find
the person who committed a 1996 rape and murder by extracting DNA data from semen
left behind at the crime scene.
108
They uploaded the data to a genetic genealogy database
containing DNA data voluntarily provided by thousands of members of the public, and
the resulting search turned up 41 potential familial matches. One of these matched on 34
out of 35 alleles—a very close match that would generally indicate a direct familial
relationship. However, when the police took and analyzed a DNA sample from the
resulting suspect—the son of the man who had voluntarily provided his DNA data to the
genealogy database—the suspect’s DNA was not a match to the DNA left behind at the
crime scene. This shows familial searching creates a high risk, not only of turning
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
106
Rori Rohlfs, et al., The Influence of Relatives on the Efficiency and Error Rate of
Familial Searching, PLOS One (Aug. 14, 2013), http://www.plosone.org/article/info%3A
doi%2F10.1371%2Fjournal.pone.0070495; see also Murphy, supra note 51, at 311 (“[I]n
cases in which the crime-scene sample is degraded or contains a mixture of profiles . . .
the confirmatory testing may erroneously inculpate the individual.”).
107
Murphy, supra note 51, at 298 (citing T.M. Reid et al., Use of sibling pairs to
determine the familial searching efficiency of forensic databases, Forensic Sci. Int.:
Genetics 340-42 (2008)).
108
Jennifer Lynch, How Private DNA Data Led Idaho Cops on a Wild Goose Chase and
Linked an Innocent Man to a 20-year-old Murder Case, EFF (May 1, 2015)
https://www.eff.org/deeplinks/2015/05/how-private-dna-data-led-idaho-cops-wild-goose-
chase-and-linked-innocent-man-20.
!
48
immediate family members into targets for further investigation, but of implicating
completely random people.
Familial searching, like DNA databanks as a whole, compounds the criminal
justice system’s disproportionate impact on people of color because criminal databases
contain disproportionally more minority DNA.
109
Maryland, which collects demographic
data on DNA samples, has found DNA from African-Americans represented
approximately 60% of the samples collected.
110
According to census data, African-
Americans make up only about 30% of Maryland’s population.
111
Even accounting for
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
109
See Criminal Justice Fact Sheet, NAACP, http://www.naacp.org/pages/criminal-
justice-fact-sheet; Jason Silverstein, The Dark Side of DNA Evidence, The Nation (March
27, 2013) (citing Jeremy Gruber, former executive director of the Council for
Responsible Genetics, for the premise that “[b]y 2011, African-Americans made up 40
percent of the Combined DNA Index System (CODIS),” even though, according to the
United States Census Bureau, as of the 2010 census, African Americans constituted only
12.6% of the total United States population), http://www.thenation.com/article/dark-side-
dna-evidence/; Overview of Race and Hispanic Origin: 2010, U.S. Census Bureau (2011)
4, http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf. See also Michael T.
Risher, Racial Disparities in Databanking of DNA Profiles, Race and the Genetic
Revolution: Science, Myth, and Culture (2011) (discussing the underlying causes of
racial disparities within the criminal justice system and noting that racial disparities in the
data contained within DNA databanks will continue to grow “as more and more people of
color’s DNA profiles are included in databases that make them potential suspects
whenever DNA is recovered from a crime scene.”); Murphy, supra note 51 (noting
“familial searches of convicted offender and arrestee databases exacerbate the actual and
apparent disparities of the criminal justice system, in which people of color are
disproportionately represented”).
110
2011 Annual Report: Maryland State Police Forensic Sciences Division Statewide
DNA Database Report, Dep't of Md. State Police, (2012) , 7, available at
http://mdsp.maryland.gov/Document%20Downloads/Statewide%20DNA%20Database%
202011%20Annual%20Report.doc.
111
State and County Quickfacts, United States Census Bureau,
http://quickfacts.census.gov/qfd/states/24000.html.
!
49
differences in how familial searching techniques impact DNA profiles from various races
and ethnicities, researchers have found “the reliance on racially disproportionate
databases will on average impact the targeting of suspicion, drawing disproportionate
attention toward Hispanics and African Americans and against Asian Americans, and
weakly affecting Caucasians.”
112
Other researchers have stated that if familial searching
were conducted on a mass scale, as much as 17% of the total African-American
population in the United States—not limited to those previously arrested or convicted—
could be identified through DNA profiles already in CODIS compared to only 4% of
Caucasians.
113
This disproportionate representation leads to a “roughly two orders of
magnitude higher” rate of false identification among the African-American population.
114
No parallel risk exists for fingerprinting.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
112
Murphy, supra note 51, at 323.
113
See Henry T. Greely, et al., Family Ties: The Use of DNA Offender Databases to
Catch Offenders’ Kin, 34 J.L. Med. & Ethics 248, 259 (2006)). CODIS has increased
from about 4 million offender profiles in 2006 to nearly 12 million today, so this
percentage could now be much higher. See CODIS Brochure, FBI,
http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure; CODIS—NDIS
Statistics, FBI, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-statistics.
114
Rohlfs, supra note 106.
!
50
CONCLUSION
Courts did not need to think about privacy interests in DNA when it was costly
and difficult to analyze. That is no longer true. Just as we cannot hide our faces in public
or participate in everyday life without leaving electronic footprints, we cannot hide our
DNA; we leave behind skin cells wherever we go. To limit government DNA-based
surveillance we must first limit governmental collection and retention of DNA, starting
by ending mass DNA collection from arrestees.
Warrantless and suspicionless DNA collection from arrestees is the next step
toward a future where “all Americans will be at risk . . . of having our DNA samples
permanently placed on file in federal cyberspace, and perhaps even worse, of being
subjected to various other governmental programs providing for suspicionless searches
conducted for law enforcement purposes.” Kincade, 379 F.3d at 843 (Reinhardt, J.,
dissenting). This is not merely a “parade of horribles,” Haskell, 669 F.3d at 1062, but the
road we are on. This Court can and should stop this trajectory.
Dated: November 13, 2015 Respectfully submitted,
/s/ Jennifer Lynch
Jennifer Lynch
Lee Tien
ELECTRONIC FRONTIER
FOUNDATION
815 Eddy Street
San Francisco, California 94109
Telephone: (415) 436-9333
Attorneys for Amici Curiae
Electronic Frontier Foundation, et al.
!
51
CERTIFICATE OF WORD COUNT
I certify pursuant to California Rules of Court 8.204 and 8.504(d) that this
Amicus Brief is proportionally spaced, has a typeface of 13 points or more, contains
11,705 words, excluding the cover, the tables, the signature block, verification, and this
certificate, which is less than the total number of words permitted by the Rules of Court.
Counsel relies on the word count of the Microsoft Word word-processing program used
to prepare this brief.
Dated: November 13, 2015 By: /s/ Jennifer Lynch !
Jennifer Lynch
Counsel for Amici Curiae
!
52
CERTIFICATE OF SERVICE
!
Case Name: People v. Mark Buza!
Case No. S223698!
!
I, Madeleine Mulkern, do hereby affirm I am employed in the County of San
Francisco, State of California. I am over the age of 18 years and not a party to the within
action. My business address is 815 Eddy Street, San Francisco, California 94109. I am
employed in the office of a member of the bar of this court at whose direction the service
was made.
On November 13, 2015, I served the foregoing document: APPLICATION OF
THE ELECTRONIC FRONTIER FOUNDATION, THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, THE MARYLAND
PUBLIC DEFENDER, AND INTERESTED LEGAL SCHOLARS FOR LEAVE
TO FILE AMICUS CURIAE BRIEF and AMICUS BRIEF IN SUPPORT OF
DEFENDANT AND APPELLANT MARK BUZA on the following parties by placing
a copy of the document(s) listed above in a sealed envelope, addressed to the parties
listed below, which envelope was then sealed by me and deposited in the United States
Mail, postage prepaid, at San Francisco, California.
Kamala Harris
Enid A. Camps
Michael James Mongan
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
Counsel for The People: Plaintiff and
Respondent
Kathryn Seligman
James Bradley O’Connell
First District Appellate Project
475 Fourteen Street, Suite 650
Oakland, CA 94612
Counsel for Mark Buza: Defendant and
Appellant
First Appellate District, Division Two
Court of Appeal of the State of California
350 McAllister Street
San Francisco, CA 94102
Superior Court of California
Attn: Hon. Carol Yaggy, Judge
Hall of Justice
850 Bryant Street
San Francisco, CA 94103
The Honorable George Gascon
District Attorney
San Francisco County District Attorney’s
Office
Hall of Justice
850 Bryant Street, Rm 325
San Francisco, CA 94103
Rachelle Barbour
Assistant Federal Defender
Federal Defender’s Office
801 I Street, 3
rd
Floor
Sacramento, CA 95814
