California Supreme Court Associate Justice Leondra Kruger. Credit: Jason Doiy/ Recorder

California can continue collecting DNA samples from suspects arrested on, but not necessarily convicted of, felony charges, a divided state Supreme Court held Monday.

Writing for a 4-3 majority, Associate Justice Leondra Kruger said provisions of the voter-approved DNA Act of 2004 pass muster with state and federal law. The majority said it was mindful of defendant Mark Buza's privacy concerns, particularly given the broad privacy rights included in the state constitution, when he refused to allow deputies to swab his cheek after a 2009 arrest.

“But in so analyzing the arrestee's choice, we cannot ignore the safeguards built into the DNA Act: the limited nature of the information stored in databases on an arrestee … the legal protections against possible misuse of the profile or the sample (including felony sanctions for knowing improper use or dissemination); and the availability of procedures for removing the profile from the database and destroying the sample,” Kruger wrote.

“We have no record before us to show that these legal protections would have been violated or proved unworkable had defendant chosen to comply with the requirement to provide a DNA sample on booking,” Kruger added.

Kruger was joined in the majority by Chief Justice Tani Cantil-Sakauye and Associate Justices Ming Chin and Carol Corrigan.

Jayann Sepich, founder of the nonprofit DNA Saves, which filed an amicus brief in support of the state and prosecutors, said the court's ruling left her “jubilant.” Sepich said: “People who say this is an invasion of privacy don't know how the system works.” The database, she noted, includes identity protections and a limited number of DNA markers. DNA Saves was represented by Norton Rose Fulbright.

The decision is a blow for privacy and civil liberties advocates as well as public defenders who argued that collecting DNA samples from arrestees amounts to an illegal, warrantless search and seizure.

“I think the court took great pains to say the ruling was narrow and limited to those in Mr. Buza's position,” said Jennifer Lynch, a senior staff attorney at the Electronic Frontier Foundation, which filed a friend-of-the-court brief in the case.

“The court—and the justices in dissent point this out—almost abdicated its duty in trying to come up with this narrow opinion,” Lynch said.

While Buza's case was pending in the California courts, the U.S. Supreme Court in 2013 rejected a defendant's Fourth Amendment challenge to Maryland law requiring DNA swabbing of those arrested for serious crimes.

That decision, the California Supreme Court wrote Monday, “significantly altered the terms of the debate.” California and Maryland laws on DNA samples, as well as the facts in the two cases, may be different, the court noted Monday, but not enough to find that Buza's Fourth Amendment rights were violated.

Writing in dissent, Associate Justice Goodwin Liu called California's process for expunging DNA records burdensome and said that the state's retention of samples of those who are never prosecuted or are cleared of charges disproportionately hurts people of color.

“I have no doubt that law enforcement is aided by the collection and retention of massive numbers of DNA profiles,” Liu wrote. “But if those interests are enough to justify the collection and retention of DNA from persons who are arrested but not convicted, not charged, or not even found to be lawfully detained so long as they do not seek expungement, then it is not that far a step for the state to collect and retain DNA from law-abiding people in general.”

Liu was joined in dissent by Associate Justice Mariano-Florentino Cuellar and Justice Dennis Perluss of the Second District Court of Appeal, who was sitting by assignment. Cuellar issued a separate dissent.

Buza was arrested on Jan. 21, 2009, after a San Francisco police officer found him running away from a police car with burning tires. He was found with matches, an oil container and road flares, according a recounting of events by the court. After his arrest, but before a judge found probable cause for his detention, Buza refused to provide a DNA swab. In addition to arson, he was charged with a misdemeanor for his test refusal. The First District Court of Appeal reversed his misdemeanor conviction in 2014.

Fearing the DNA Act could be declared unconstitutional by a court, the California Legislature in 2015 approved changes—with a caveat—that would only allow a felony arrestee's DNA sample to be sent to the state database if a judge found probable cause. The legislation also set up an automatic expungement process. Those changes would only take affect, lawmakers said, if the state Supreme Court struck down the DNA Act. Because the state did not do that Monday, the legislation is now moot.

The Legislature should take another look at adopting those provisions, EFF's Lynch said.

The California Supreme Court ruling in People v. Buza is posted below: