S.F. Examiner file photo

S.F. Examiner file photo

State high court upholds DNA cheek swab for SF arson suspect

A divided California Supreme Court by a 4-3 vote in San Francisco on Monday upheld the collection of DNA cheek swabs from people who are validly arrested on suspicion of a serious crime.

The court majority said a voter-approved law requiring a swab in the case of San Francisco arson suspect Mark Buza didn’t violate either the federal or state constitution’s ban on unreasonable searches.

The 2004 voter initiative is sometimes called the DNA Act.

The court said the law “was reasonable as applied to defendant” Buza, who was eventually convicted of the 2009 arson of a police car.

But the court said it was making no determination of the validity of the DNA Act in other situations, such as in cases of arrests unjustly made without probable cause, or cases in which the DNA information of a person who is never convicted is not deleted from state records.

“We recognize that the DNA Act may raise additional constitutional questions that will require resolution in other cases,” Justice Leondra Kruger wrote in the majority opinion.

Buza was arrested on suspicion of arson on Jan. 21, 2009, after a San Francisco police sergeant spotted a parked police car on fire and saw him run into a wooded area while carrying a bottle of gasoline and oil.

Buza declined to give a cheek swab with a DNA sample after he was arrested. He was later convicted of felony arson and misdemeanor refusal to give a cheek swab and was sentenced to a year and four months in prison.

The DNA collection requirement was enacted by voters as part of Proposition 69 in 2004. The law gradually expanded the categories of people whose DNA must be obtained, and the mandate applying to all felony arrestees went into effect on Jan. 1, 2009. Buza was arrested three weeks later.

In 2013, the U.S. Supreme Court upheld a similar law enacted by the state of Maryland, saying that it did not violate the U.S. Constitution.

Buza argued in his appeal that his case was different because the California measure was broader than the Maryland law and the state Constitution has been interpreted to provide stronger protection against unreasonable searches.

But the court majority said those differences didn’t affect its analysis of Buza’s case and that Buza was entitled to challenge only his own situation. The panel said it is obligated to uphold voter initiatives unless they are “clearly, positively and unmistakably” unconstitutional.

Buza had argued the DNA collection before conviction was a “body invasion” that could lead to storage of private information, including sensitive genetic information, in state and national databases. He did not challenge post-conviction DNA collection.

State lawyers defending the law contended the collection is minimally intrusive, more precise than fingerprints and useful for providing identification related to possible past or future criminal conduct by the suspect.

Buza’s lawyer in the appeal, Bradley O’Connor, said he was disappointed the court did not address Buza’s broader arguments.

“The court majority recognized implicitly that there are issues of constitutional concern about the state regimen, especially for those arrested but not ultimately convicted, but it made no determination,” he said.

The California law provides for the deletion of DNA data in cases of people who are not convicted, but unlike the Maryland law, it does not make the removal automatic and requires an arrestee to go through a procedure to ask for expungement.

O’Connor noted that a dissent by Justice Goodwin Liu cited state statistics showing that about one-third of the 2.2 million people arrested in California between 2009 and 2016 were never convicted of a crime, yet their arrests triggered the collection of their DNA. About one-fifth of the 2.2 million arrestees were never charged with a crime.

Liu said that only about 1.6 percent of the samples of the non-convicted arrestees have been removed.

He wrote, “It is questionable whether the vast majority of people entitled to expungement even know about the process, much less know how to navigate it.”

A related lawsuit challenging the California law is pending in federal court in San Francisco before U.S. District Judge Charles Breyer.

The federal lawsuit was filed by four citizens who had their DNA collected after being arrested, but who, unlike Buza, were never charged with a crime. In 2014, Breyer put that case on hold until the Buza case was resolved.

-Julia Cheever, Bay City NewsCrime

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