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Court to Consider California's DNA Collection Law

, The Associated Press

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SAN FRANCISCO (AP) — California Attorney General Kamala Harris and the Obama administration are urging a federal appeals court to uphold California's mandatory collection of DNA samples from everyone arrested in the state as a constitutional and powerful law enforcement tool.

A specially convened panel of 11 judges of the 9th U.S. Circuit Court of Appeal in San Francisco is scheduled to hear oral arguments on an American Civil Liberties Union legal challenge to the collection. The ACLU alleges collecting DNA from all arrestees is an unconstitutional invasion of privacy because not all persons arrested are convicted of crimes.

At issue is a voter-approved law that went into effect in 2009 that significantly expands California's DNA database, which now contains some 2 million samples. The samples are compared to DNA evidence kept from long-ago crimes in hopes of finding a match. More than 10,000 suspects have been identified through the database in the last five years.

The 9th Circuit appeared on the verge of striking down the law after a first round of oral arguments last year. But before the 9th Circuit could rule, the U.S. Supreme Court ruled 5-4 to uphold Maryland's similar — but narrower — law. The 9th Circuit ordered new legal arguments, demanding from the ACLU reasons why California's law differs enough from Maryland's to be struck down.

Maryland collects DNA only from those arrested for "serious crimes." Maryland also destroys DNA samples of people who are exonerated or never charged.

"Unlike Maryland, California's DNA law includes not only individuals arrested for violent felonies but also people arrested for nonviolent offenses such as joyriding, simple drug possession, and shoplifting beer," ACLU Michael Risher wrote in a legal filing.

State Attorney General Kamala Harris' office argues that the differences between the two states aren't consequential or "constitutionally significant." The attorney general argues that supplying the sample is a "minimally invasive" swab of an arrestee's cheek and no more intrusive than taking fingerprints during the booking process.

Daniel Powell, a deputy attorney general in Harris' office, argued that striking down the collection law "would not only rob law enforcement of an effective crime-fighting tool" but call into question the constitutionality of collecting fingerprints from arrestees.

Powell also contends that arrestees don't enjoy all the same rights as a private citizen.

"An arrestee's reduced expectation of privacy is well established: arrestees are subject to imprisonment, around the clock monitoring in jails, full body cavity searches, and a close visual inspection while undressed," Powell wrote.

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