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Is taking DNA a reasonable search? US judges uphold California law.

A 2004 California law permits DNA samples taken from adults arrested for felonies to be stored in a national database. Challengers said that violates Fourth Amendment privacy protections.

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A federal appeals court in San Francisco ruled Thursday that a California law requiring the taking of a DNA sample from every adult arrested for a felony does not violate the Constitution’s prohibition on unreasonable searches.

The panel of the Ninth US Circuit Court of Appeals voted 2-1 to uphold the law, which permits the collected samples to be stored in a nationwide database for potential use in future investigations.

Challengers had argued in a class-action lawsuit that the DNA law – passed in 2004 as Proposition 69 – would facilitate the use of their DNA samples in future investigations without the government first obtaining a warrant or reasonable suspicion. They said such actions violate Fourth Amendment privacy protections.

“We conclude that the government’s compelling interests far outweigh arrestees’ privacy concerns,” wrote Judge Milan Smith in a 33-page decision joined by Senior District Judge James Dale Todd.

In a dissent, Judge William Fletcher said the DNA law ignores an important distinction that he said applies to the collection of fingerprints.

“Fingerprints may be taken from an arrestee in order to identify him – that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody,” Judge Fletcher wrote in his 27-page dissent.

“DNA samples are not taken from felony arrestees under Proposition 69 in order to identify them,” he said. “Rather, they are taken solely for an investigative purpose, without a warrant or reasonable suspicion.”

The taking and storage of such DNA samples, solely for future investigations, is invalid under existing legal precedents, Fletcher said.

Fletcher also noted that all four of the plaintiffs were arrested for felonies but none were convicted. Two were not even charged.

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