Appeals Court: Police Can Collect DNA from Arrested Suspects

​Police officers have the authority to forcibly collect DNA from those they arrest, even if the suspects have not been charged with or convicted of a crime, the U.S. Court of Appeals for the Ninth Circuit ruled yesterday.

The court upheld a California law, enacted by ballot initiative in 2004, that requires police to swab the inner cheek of anyone arrested on suspicion of a felony. Before that, such DNA samples were collected only from those convicted of felonies.

"Although plaintiffs use the phrase 'DNA profile' to evoke images of an oppressive 'Big Brother' cataloguing our most intimate traits, the reality is far less troubling," Judge Milan Smith wrote for the majority.

The case was brought by four plaintiffs forced to submit to DNA collection, none of whom were subsequently convicted of a crime. Two were not even charged.

In a 27-page dissent, Judge William Fletcher asserted that collecting DNA from those who have merely been arrested violates Fourth Amendment protections against unreasonable search and seizure. Fletcher argued that fingerprints -- a less intrusive form of biological profiling -- are collected only for identification purposes.

By contrast, the point of DNA collection from arrestees is "investigative," seeking to link them to other crimes.

"We have never allowed the compulsory taking of DNA samples from mere arrestees. We should not begin now," Fletcher wrote.

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