Calif. DNA Collection From Arrestees Challenged

An Alabama man was charged this month with the 1980 murder of an Oxnard teen. A Placerville man was arrested last month for a 1986 rape and murder of a San Mateo teen. A San Francisco man is currently on trial for the murder and robbery of a tourist two decades ago.

Technological advances in genetic research and computers in recent years have turned solving "cold cases" into near-routine police work. The California Attorney General reports that the state's DNA database of close to 2 million samples spits outs more than 425 "hits" a month, more than double the average monthly rate of 183 in 2008. More than 10,000 suspects have been identified in the last five years.

But on Wednesday, the American Civil Liberties Union will argue before a federal appellate court in San Francisco that California's DNA collection efforts have become unconstitutionally aggressive and that the spike in hits comes at the expense of civil liberties.

The ACLU is asking the 9th U.S. Circuit Court of Appeals to strike down California's Proposition 69, which authorized police to obtain a genetic sample from every person arrested on felony charges, not just those convicted. Some 25 other states have enacted similar laws since 62 percent of the California electorate passed the measure in 2004.

The issue of the warrantless swabbing of the cheek with a Q-tip of everyone arrested for a felony has sparked one of the hottest "search and seizure" debates in state and federal courts in decades.

The U.S. Supreme Court has already signaled its willingness to review Maryland's DNA collection law after a federal appeals court there ruled it unconstitutional in April. The California Supreme Court has agreed to review a lower court's overturning of the California law. Several other state and federal courts have already ruled or are weighing the issue throughout the country.

While the courts are sorting out the issue, California law enforcement officials are collecting more than 11,000 samples a month.

"Cold hit DNA is integral to bringing criminals to justice," said San Francisco District Attorney George Gascon, whose office is prosecuting William Payne for the 1983 strangulation murder of Nikolaus Crumbley. Crumbley's body was found in the city's McLaren Park along with DNA that was finally matched to Payne earlier this year. Payne denies killing Crumbley, saying his DNA was found at the scene because the two had had consensual sex. The match was made after Payne submitted a DNA sample after an unrelated assault conviction.

"Almost three decades later, we have charged the person responsible for this horrific murder," Gascon said.

The 9th Circuit itself has previously upheld the California law, which went into full effect in 2009. But underscoring the importance of the debate, a majority of the court's 24 judges voted to reconsider that divided ruling of three-judge panel. The matter now goes before a special "en banc" court of 11 judges.

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Calif. DNA Collection From Arrestees Challenged