HDNA “Test on Arrest” Policy Upheld By Split 9th Circuit Panel


A divided federal appeals court panel upheld the constitutionality of California’s DNA “test on arrest” policy, which Politico.com says is building a massive database compiled from the DNA of people arrested for felonies, regardless of whether they are ultimately convicted of anything. The “test on arrest” policy has been endorsed by President Obama, who encourages states and federal agencies to link up their databases to solve crimes.

The U.S. Court of Appeals for the 9th Circuit’s 2-1 ruling said collecting a DNA samples, which are obtained from swabbing the inside of an arrestee’s mouth, does not violate the Fourth Amendment’s protection against unreasonable searches and seizures. “The physical extraction of DNA using a buccal swab collection technique is little more than a minor inconvenience to felony arrestees, who have diminished expectations of privacy,” said Judge Milan Smith. Judge William Fletcher dissented, saying that the database invades the privacy of people not yet convicted, and who may never be. Fletcher says that while DNA profiling and the practice of fingerprinting are similar, neither should be done solely for investigative purposes without a warrant.

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