SEE DISSENTING OPINIONS

Filed 4/2/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S223698

v. )

) Ct.App. 1/2 A125542

MARK BUZA, )

) San Francisco County

Defendant and Appellant. ) Super. Ct. No. SCN 207818

____________________________________)

In 2004, California voters passed Proposition 69 (Prop. 69, as approved by 

voters, Gen. Elec. (Nov. 2, 2004); known as the “DNA Fingerprint, Unsolved 

Crime and Innocence Protection Act” (DNA Act)) to expand existing requirements

for the collection of DNA identification information for law enforcement 

purposes. The DNA Act requires law enforcement officials to collect DNA 

samples, as well as fingerprints, from all persons who are arrested for, as well as 

those who have been convicted of, felony offenses. (Pen. Code, § 296.1, subd. 

(a)(1)(A).)

Defendant Mark Buza was arrested for arson and related felonies and 

transported to jail. At booking, a jail official informed defendant that he was 

required to provide a DNA sample by swabbing the inside of his cheek. He 

refused. A jury later convicted him of both the arson-related felonies and the 

misdemeanor offense of refusing to provide a specimen required by the DNA Act. 

(Pen. Code, § 298.1, subd. (a).)
2

The Court of Appeal reversed defendant’s misdemeanor refusal conviction, 

holding that the DNA Act violated defendant’s rights under the Fourth 

Amendment to the United States Constitution. While the case was pending on 

appeal, the United States Supreme Court addressed a similar issue in Maryland v. 

King (2013) 569 U.S. 435 (King), and reached a different conclusion. The high 

court held that “[w]hen officers make an arrest supported by probable cause to 

hold for a serious offense and they bring the suspect to the station to be detained in 

custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like 

fingerprinting and photographing, a legitimate police booking procedure that is 

reasonable under the Fourth Amendment.” (Id. at pp. 465–466.)

Following the high court’s decision in King, this case returned to the Court 

of Appeal. On remand, the Court of Appeal again reversed defendant’s 

misdemeanor refusal conviction, this time on the ground that the DNA Act 

violates the California Constitution’s prohibition on unreasonable searches and 

seizures. (Cal. Const., art. I, § 13.)

Defendant raises a number of questions about the constitutionality of the 

DNA Act as it applies to various classes of felony arrestees. But the question 

before us is a narrower one: Whether the statute’s DNA collection requirement is 

valid as applied to an individual who, like defendant, was validly arrested on 

“probable cause to hold for a serious offense”—here, the felony arson charge for 

which defendant was ultimately convicted—and who was required to swab his 

cheek as “part of a routine booking procedure” at county jail. (King, supra, 569 

U.S. at p. 465.) Under the circumstances before us, we conclude the requirement 

is valid under both the federal and state Constitutions, and we express no view on 

the constitutionality of the DNA Act as it applies to other classes of arrestees. We 

accordingly reverse the judgment of the Court of Appeal in this case.
3

I.

A.

For decades before the DNA Act, California law had required the collection 

of biological samples from individuals convicted of certain offenses. In 1983, the 

Legislature enacted legislation requiring certain sex offenders to provide blood 

and saliva samples before their release or discharge. (Stats. 1983, ch. 700, § 1, 

pp. 2680–2681, codified at Pen. Code, former § 290.2.) In 1998, the Legislature 

enacted the “DNA and Forensic Identification Data Base and Data Bank Act,”

which required the collection of DNA samples from persons convicted of certain 

felony offenses, including certain sex offenses, homicide offenses, kidnapping, 

and felony assault or battery. (Stats. 1998, ch. 696, § 2, pp. 4574–4579; Pen. 

Code, former § 296, subd. (a).)

When the California electorate voted to pass Proposition 69 on the 2004 

general election ballot, it substantially expanded the scope of DNA sampling to 

include individuals who are arrested for any felony offense, as well as those who 

have been convicted of such an offense. In People v. Robinson (2010) 47 Cal.4th 

1104 (Robinson), this court upheld the expanded DNA collection requirement as 

applied to persons convicted of felony offenses. The question now before us 

concerns the application of the DNA Act to persons who have been arrested for, 

but not yet convicted of, a felony offense.

In its statutory findings and declarations of purpose, Proposition 69 

explained that expansion of the DNA databank program was warranted to serve a 

“critical and urgent need to provide law enforcement officers and agencies with 

the latest scientific technology available for accurately and expeditiously 

identifying, apprehending, arresting, and convicting criminal offenders and 

exonerating persons wrongly suspected or accused of crime.” (Prop. 69, supra, 
4

§ II, subd. (b).) With respect to arrestees in particular, Proposition 69 declared: 

“The state has a compelling interest in the accurate identification of criminal 

offenders”; that “DNA testing at the earliest stages of criminal proceedings for 

felony offenses will help thwart criminal perpetrators from concealing their 

identities and thus prevent time-consuming and expensive investigations of 

innocent persons”; and “it is reasonable to expect qualifying offenders to provide 

forensic DNA samples for the limited identification purposes set forth in this 

chapter.” (Id., § II, subds. (e), (f).) 

The DNA Act provides that, as of January 1, 2009, all adult felony arrestees 

“shall provide buccal swab samples, right thumbprints, and a full palm print 

impression of each hand, and any blood specimens or other biological samples 

required pursuant to this chapter for law enforcement identification analysis.” 

(Pen. Code, § 296, subd. (a).) Providing a buccal swab sample requires the 

arrestee to apply a swab to the inside of his or her cheek to collect the “inner cheek 

cells of the mouth,” which contain DNA. (Id., § 295, subd. (e).) The statute 

provides that these specimens, samples, and print impressions shall be collected 

“immediately following arrest, or during the booking . . . process or as soon as 

administratively practicable . . . but, in any case, prior to release on bail or pending 

trial or any physical release from confinement or custody.” (Id., § 296.1, subd. 

(a)(1)(A).) Refusal to provide any of the required specimens is punishable as a 

misdemeanor. (Id., § 298.1, subd. (a).)

Collected DNA samples are sent to California Department of Justice’s 

DNA Laboratory for forensic analysis. (Pen. Code, §§ 295, subds. (f), (g), 

(i)(1)(C), 295.1, subd. (c).) The laboratory uses the samples to create a unique 

DNA identification profile, using genetic loci that are known as “junk” or

“noncoding” DNA, because the loci have no known association with any genetic 

trait, disease, or predisposition. (See King, supra, 569 U.S. at pp. 442–443, 445.) 
5

This profile is stored in California’s DNA databank. California’s DNA databank 

is part of the Combined DNA Index System (CODIS), a nationwide database that 

enables law enforcement to search DNA profiles collected from federal, state, and 

local collection programs. (See ibid.; Pen. Code, § 299.6, subd. (b); Cal. Dept. of 

Justice (DOJ), Bureau of Forensic Services (BFS), Laboratory Services, DNA 

Analysis, <https://oag.ca.gov/bfs/services> [as of Apr. 2, 2018].) DNA profiles 

stored by the DNA Laboratory may be accessed by law enforcement agencies. 

(Pen. Code, § 299.5, subd. (f).) The DNA Laboratory must “store, compile, 

correlate, compare, maintain, and use” DNA profiles for forensic casework, for 

comparison with samples found at crime scenes, and for identification of missing 

persons. (Id., § 295.1, subd. (c).) 

Information obtained from an arrestee’s DNA is confidential and may not 

be disclosed to the public. (Pen. Code, § 299.5.) DNA samples and the biological 

material from which they are obtained may not be used “as a source of genetic 

material for testing, research, or experiments, by any person, agency, or entity 

seeking to find a causal link between genetics and behavior or health.” (Id., 

§ 295.2.) Any person who knowingly uses a DNA sample or profile for any 

purpose other than “criminal identification or exclusion purposes” or “the 

identification of missing persons,” or who “knowingly discloses DNA or other 

forensic identification information . . . to an unauthorized individual or agency” 

for any unauthorized reason is subject to criminal prosecution and may be 

imprisoned for up to three years and fined up to $10,000. (Id., § 299.5, subd. 

(i)(1).) The Department of Justice is also subject to civil damages for knowing 

misuse of a sample or profile by any of its employees. (Id., § 299.5, subd. 

(i)(2)(A).) 

The DNA Act provides that if an arrestee is cleared of charges and there is

no other basis for keeping the information, the arrestee “shall have his or her DNA 
6

specimen and sample destroyed and searchable database profile expunged from 

the databank program.” (Pen. Code, § 299, subd. (a).) An arrestee may request 

expungement if he or she is released without being charged, if all qualifying 

charges against the arrestee are dismissed, or if the arrestee is found not guilty or 

factually innocent of all qualifying charges. (Id., § 299, subd. (b).) The federal 

legislation establishing CODIS likewise requires participating states to “promptly 

expunge” the DNA profile of any person who is cleared of qualifying charges. (34

U.S.C. § 12592(d)(2)(A).)

The DNA Act includes a broad severability provision. The provision 

specifies that the invalidity of certain provisions or their application “shall not 

affect other provisions or applications that can be given effect without the invalid 

provision or application.” (Prop. 69, supra, § V, subd. (b).) 

B.

On the afternoon of January 21, 2009, a San Francisco police officer saw 

defendant running away from a police car that had burning tires. Police found 

defendant hiding nearby and searched him. Matches were found in defendant’s 

pocket, a container of oil was found in his backpack, and a road flare and a bottle 

containing a liquid that smelled like gasoline were discovered in the area where he 

had been hiding.

Defendant was arrested and taken to county jail. There, several hours after 

the initial arrest, a San Francisco sheriff’s deputy asked defendant to swab the 

inside of his cheek for purposes of providing a sample of his DNA. The deputy 

told defendant he was required by law to provide the sample, asked defendant to 

read a form that described the pertinent requirements, and warned defendant that 

refusing to provide a DNA sample was a misdemeanor. Defendant refused.

On January 22, 2009, a judge of the Superior Court found probable cause to 

believe that defendant committed a public offense for which he could be detained, 
7

namely, felony arson in violation of Penal Code section 451, subdivision (d). The 

next day, the district attorney filed a felony complaint charging defendant with 

that offense, as well as possession of combustible material or incendiary device 

(id., § 453, subd. (a)), and vandalism (id., § 594, subd. (b)(1)). The complaint also 

charged defendant with misdemeanor refusal to provide a DNA specimen (id., 

§ 298.1, subd. (a)). Defendant was arraigned on the same day and pleaded not 

guilty to the charges.

Approximately three months later, defendant was tried before a jury. 

Defendant moved for judgment of acquittal on the misdemeanor refusal charge, 

arguing that the Fourth Amendment did not permit the state to compel arrestees to 

furnish DNA samples. The court denied the motion. At trial, defendant admitted 

to setting the police car on fire; he testified that while he regarded setting the fires 

as a justified protest against government overreach, he knew his act was regarded 

as illegal. Defendant also admitted to refusing to provide a DNA sample in 

accordance with Penal Code section 298.1. The jury convicted defendant of all 

charges.

The trial court ordered defendant to provide a DNA sample before he was 

sentenced, and when defendant initially refused to comply with the order, the court

authorized the Sheriff’s Department to use reasonable force to obtain the sample. 

Defendant then furnished a DNA sample. The court sentenced defendant to a 

prison term of 16 months on the arson charge, imposed concurrent sentences on 

the charges of possession of combustible material and misdemeanor refusal to 

provide a DNA specimen, and stayed the sentence on the vandalism charge under

Penal Code section 654. 

On appeal, the Court of Appeal reversed defendant’s conviction for 

refusing to provide a DNA sample. The court held that “the DNA Act, to the 

extent it requires felony arrestees to submit a DNA sample for law enforcement 
8

analysis and inclusion in the state and federal DNA databases, without 

independent suspicion, a warrant or even a judicial or grand jury determination of 

probable cause, unreasonably intrudes on such arrestees’ expectation of privacy 

and is invalid under the Fourth Amendment of the United States Constitution.”

We granted review. While the case was still pending, the United States 

Supreme Court issued its decision in King, supra, which upheld a similar DNA 

collection requirement against Fourth Amendment challenge. Following King, we 

transferred this case to the Court of Appeal for reconsideration.

The Court of Appeal again reversed defendant’s conviction. Although the 

court observed that California’s DNA collection law is broader than the Maryland 

law at issue in King, the court declined to decide whether the differences between 

the California law and the Maryland law change the Fourth Amendment calculus 

under King. The Court of Appeal instead rested its decision on the prohibition on 

unreasonable searches and seizures in article I, section 13 of the California 

Constitution. In language closely paralleling its initial decision, the court held that 

“the DNA Act, to the extent it requires felony arrestees to submit a DNA sample 

for law enforcement analysis and inclusion in the state and federal DNA 

databases, without independent suspicion, a warrant or even a judicial or grand 

jury determination of probable cause, unreasonably intrudes on such arrestees’ 

expectation of privacy and is invalid under article I, section 13, of the 

Constitution.”

In the wake of King, other California Courts of Appeal have addressed the 

constitutionality of the DNA Act in the context of reviewing decisions regarding 

the suppression of evidence derived from DNA samples collected from felony 

arrestees. Those courts have concluded that, under King’s reasoning, the 

collection and testing of arrestee DNA samples under the DNA Act does not 

violate the Fourth Amendment.
9

We granted review to decide whether the collection and analysis of forensic 

identification DNA database samples from felony arrestees, as required by 

Proposition 69, violates either article I, section 13 of the California Constitution or 

the Fourth Amendment to the United States Constitution.

1

II.

The Fourth Amendment to the United States Constitution provides, in 

pertinent part: “The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, shall not be 

violated.” Article I, section 13 of the California Constitution provides, in 

essentially identical language: “The right of the people to be secure in their 

persons, houses, papers, and effects against unreasonable seizures and searches 

may not be violated.”

As the constitutional language itself makes plain, the “touchstone for all 

issues” under both provisions is “reasonableness.” (Ingersoll v. Palmer (1987) 43 

Cal.3d 1321, 1329; accord, e.g., Riley v. California (2014) 573 U.S. ___, ___ [134 

S.Ct. 2473, 2482].) The question before us is whether it was unreasonable within 

the meaning of one or both of these provisions to require defendant to use a cheek 

swab to provide a DNA sample to jail officials as part of the booking process

following his arrest for arson. If so, defendant cannot be penalized for failure to 

comply, and his misdemeanor refusal conviction must be reversed. If, on the other 

hand, the requirement was reasonable, then defendant’s conviction stands. (See 

 

1 Defendant did not invoke the California Constitution in the trial court or in 

his first round of appellate briefing, instead relying solely on the Fourth 

Amendment. The Court of Appeal, however, relied on the California Constitution 

in its decision on remand after King. We accordingly address the questions raised 

under both the Fourth Amendment and article I, section 13 of the California 

Constitution.
10

Birchfield v. North Dakota (2016) 579 U.S. ___, ___–___ [136 S.Ct. 2160, 2172–

2173].)

The United States Supreme Court’s decision in King, which was issued 

while this appeal was pending, has significantly altered the terms of the debate. 

After King, defendant no longer argues, as he had argued in the courts below, that 

the Fourth Amendment categorically forbids the mandatory collection of DNA 

from persons who have been arrested but not yet convicted of felony offenses. 

Defendant argues instead that King should be either distinguished on its facts or 

rejected as a matter of state constitutional law. Because both arguments require us 

to consider the import of the United States Supreme Court’s decision in King, we 

will begin there.

A.

King came to the high court against the backdrop of increasingly 

widespread use of DNA technology in criminal justice systems nationwide. As 

the court observed, all 50 states and the federal government require the collection 

of DNA samples from individuals who are convicted of felony offenses. In recent 

years, a majority of states and the federal government have also authorized the 

collection of DNA from some or all persons arrested for felony offenses. (King, 

supra, 569 U.S. at p. 445.) Although courts had generally approved the collection 

of DNA samples following conviction, the permissibility of this expansion of 

DNA sampling proved more controversial. The high court granted review in King

to resolve a conflict among federal and state courts “as to whether the Fourth 

Amendment prohibits the collection and analysis of a DNA sample from persons 

arrested, but not yet convicted, on felony charges.” (Id. at p. 442.)

The specific question before the court concerned the application of a 

Maryland law that authorized law enforcement authorities to collect DNA samples 

from an individual charged with certain statutorily defined “crime[s] of violence,” 
11

including murder, rape, first degree assault, kidnapping, arson, and sexual assault, 

as well as burglary and an attempt to commit one of these enumerated crimes. 

(King, supra, 569 U.S. at p. 443.) The defendant in King had been arrested and 

charged with one such offense, “first- and second-degree assault for menacing a 

group of people with a shotgun.” (Id. at p. 440.) The same day, his cheek was 

swabbed for DNA as part of the booking process. The sample matched DNA that 

had been collected from a rape victim several years earlier, and the defendant was 

charged with and convicted of the rape. Appealing that conviction, defendant 

argued that the DNA sample had been taken in violation of his Fourth Amendment 

rights and should have been suppressed. The Maryland Court of Appeals agreed 

and overturned the rape conviction. (Ibid.)

The United States Supreme Court reversed. The high court agreed with the 

Maryland court that a buccal swab for the collection of DNA samples—like any 

invasion of the body—is a search within the meaning of the Fourth Amendment, 

“gentle” though the search may be. (King, supra, 569 U.S. at p. 446.) But the 

court held that both the initial collection of a DNA sample and its subsequent 

processing pursuant to CODIS procedures is, “like fingerprinting and 

photographing, a legitimate police booking procedure that is reasonable under the 

Fourth Amendment.” (Id. at p. 466.)

The high court explained that, as a general rule, a search is presumptively 

unreasonable if it is undertaken in the absence of a warrant or individualized 

suspicion of wrongdoing. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 

646, 652–653.) But “[i]n some circumstances, such as ‘[w]hen faced with special 

law enforcement needs, diminished expectations of privacy, minimal intrusions, or 

the like, the Court has found that certain general, or individual, circumstances may 

render a warrantless search or seizure reasonable.’ ” (King, supra, 569 U.S. at 

p. 447, quoting Illinois v. McArthur (2001) 531 U.S. 326, 330.) The court 
12

concluded that the buccal swab of an arrestee on booking falls into a category of 

routine searches, justified by special law enforcement needs, that is properly 

analyzed “by reference to the proposition that the ‘touchstone of the Fourth 

Amendment is reasonableness, not individualized suspicion.’ ” (King, at p. 448.)

Weighing the privacy-related concerns at stake against law enforcement 

needs, the court concluded that the search was reasonable. On the law 

enforcement side of the balance, the court identified five interrelated governmental 

interests in obtaining the DNA sample. First, the court explained, the state has an 

interest in knowing “ ‘who has been arrested and who is being tried.’ ” (King, 

supra, 469 U.S. at p. 450, quoting Hiibel v. Sixth Judicial Dist. Court of Nev., 

Humboldt County (2004) 542 U.S. 177, 191.) “A suspect’s criminal history,” the 

high court continued, “is a critical part of his identity that officers should know 

when processing him for detention,” and “[a] DNA profile is useful to the police 

because it gives them a form of identification to search the records already in their 

valid possession” for the suspect’s criminal history. (King, at pp. 450–451.) In 

this respect, the court said, the profile serves the same purpose as a name or 

fingerprints. (Id. at p. 451.) Second, the high court reasoned, “DNA identification 

can provide untainted information to those charged with detaining suspects and 

detaining the property of any felon,” which is significant because “officers must 

know the type of person whom they are detaining, and DNA allows them to make 

critical choices about how to proceed.” (Id. at p. 452.) Third, the court noted, 

using DNA samples to determine whether the accused has committed other crimes 

furthers the state’s “ ‘substantial interest in ensuring that persons accused of 

crimes are available for trials.’ ” (Ibid.) This is so, it said, because “[a] person 

who is arrested for one offense but knows that he has yet to answer for some past 

crime may be more inclined to flee the instant charges,” thereby presenting “a risk 

to law enforcement officers, other detainees, victims of previous crimes, 
13

witnesses, and society at large.” (Id. at p. 453.) Fourth, the court explained, “an 

arrestee’s past conduct is essential to an assessment of the danger he poses to the 

public,” which may determine “whether the individual should be released on bail.” 

(Ibid.) And fifth, the court noted, “the identification of an arrestee as the 

perpetrator of some heinous crime may have the salutary effect of freeing a person 

wrongfully imprisoned for the same offense.” (Id. at p. 455.)

Law enforcement agencies, the court explained, “routinely have used 

scientific advancements in their standard procedures for the identification of 

arrestees” (King, supra, 569 U.S. at p. 456), including photographs, body 

measurements, and fingerprints. The court observed that fingerprinting, in 

particular, is “[p]erhaps the most direct historical analogue to the DNA 

technology” at issue in the case (id. at p. 458): fingerprints have long been taken 

for purposes of comparison to identify suspects and for purposes of matching them 

to fingerprints taken from the scene of unsolved crimes, and electronic databases 

are now available that facilitate the comparison (id. at pp. 436, 458–459). DNA 

identification, the court noted, is a “markedly more accurate form of identifying 

arrestees” and the “additional intrusion upon the arrestee’s privacy beyond that 

associated with fingerprinting is not significant.” (Id. at p. 459.) “DNA 

identification,” the court reasoned, “is an advanced technique superior to 

fingerprinting in many ways, so much so that to insist on fingerprints as the norm 

would make little sense to either the forensic expert or a layperson.” (Ibid.) 

Compared to this set of governmental interests, the high court concluded 

that the privacy interests at stake were more limited. To begin with, the court 

explained, the buccal swab used to obtain a DNA sample is a “minimal intrusion.” 

(King, supra, 569 U.S. at p. 463.) Moreover, the court noted, “[o]nce an 

individual has been arrested on probable cause for a dangerous offense that may 

require detention before trial,” that person has a diminished expectation of privacy 
14

and “freedom from police scrutiny.” (Ibid.) This diminished expectation 

distinguishes arrestee searches from “the sort of programmatic searches of either 

the public at large or a particular class of regulated but otherwise law-abiding 

citizens” (id. at p. 462), such as checkpoint searches or the drug testing of political 

candidates, for which the court has “insisted on some purpose other than ‘to detect 

evidence of ordinary criminal wrongdoing.’ ” (Id. at p. 463.) 

The high court further concluded that analysis of the DNA sample, once 

collected, does not result in a privacy intrusion that violates the federal 

Constitution. (King, supra, 569 U.S. at p. 464.) It explained that the processed 

DNA loci “come from noncoding parts of the DNA that do not reveal the genetic 

traits of the arrestee” and that “law enforcement officers analyze DNA for the sole 

purpose of generating a unique identifying number against which future samples 

may be matched.” (Ibid.) It also noted that Maryland’s DNA law “provides 

statutory protections that guard against further invasion of privacy” (id. at p. 465.); 

in the court’s view, these statutory protections allayed the privacy concerns 

associated with the state’s analysis of the DNA sample (ibid., citing NASA v. 

Nelson (2011) 562 U.S.___, ___ [131 S.Ct. 746, 750]).

For these reasons, the court held that “[w]hen officers make an arrest 

supported by probable cause to hold for a serious offense and they bring the 

suspect to the station to be detained in custody, taking and analyzing a cheek swab 

of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police 

booking procedure that is reasonable under the Fourth Amendment.” (King, 

supra, 569 U.S. at pp. 465–466.)

B.

At least at first glance, King would seem to resolve the Fourth Amendment 

question raised in this case. King holds that DNA identification of arrestees is 

reasonable on booking following an arrest supported by probable cause to believe 
15

the arrestee has committed a serious offense. Defendant in this case was asked to 

provide a cheek swab as part of a routine booking procedure following an arrest 

supported by probable cause to believe he had committed a serious offense—

namely, felony arson.

Defendant urges us to take a second look, however. He notes that while 

California’s legal framework for the collection, analysis, and retention of arrestee 

DNA is in many ways similar to the Maryland law upheld in King, it is not 

identical. Defendant highlights three features of the DNA Act in particular that, in 

his view, distinguish this case from King: (1) the DNA Act applies to a broader 

category of arrestees than the Maryland law; (2) the DNA Act, unlike the 

Maryland law, authorizes both collection and testing of DNA samples before an 

accusatory pleading is filed in court and before a judicial determination has been 

made that the charges are valid; and (3) the DNA Act, unlike the Maryland law,

does not provide for automatic destruction of the DNA sample if the arrestee is 

cleared of felony charges.

Although these differences between the California and Maryland laws may 

be relevant in another case involving a differently situated arrestee, this case 

involves a defendant who was validly arrested on probable cause to believe he had 

committed felony arson, and who was promptly charged with (and ultimately 

convicted of) that offense. In the context of the particular case before us, we 

conclude that none of the differences to which defendant points meaningfully 

alters the constitutional balance struck in King.

We begin with defendant’s first argument, about the scope of the DNA 

Act’s collection requirement. Defendant observes that the Maryland law at issue 

in King authorized DNA collection only from those accused of specified serious 

crimes, including a category defined as “crime[s] of violence” under state law,

whereas the DNA Act authorizes DNA collection from all felony arrestees. (King, 
16

supra, 569 U.S. at p. 443.) Defendant argues that this difference is important 

because the seriousness of the crime of arrest figures prominently in the high 

court’s balancing analysis: The high court’s opinion states that “the necessary 

predicate of a valid arrest for a serious offense is fundamental” (id. at p. 461), and 

elsewhere uses language that suggests the court was particularly concerned with 

persons arrested for “violent” or “dangerous” crimes (id. at pp. 453, 455). Such a 

limitation makes sense, defendant contends, because such crimes are the kinds of 

crimes that typically yield DNA evidence.

Defendant appears to read too much into the language on which he relies. 

The high court identified the question before it more generally as “whether the 

Fourth Amendment prohibits the collection and analysis of a DNA sample from 

persons arrested, but not yet convicted, on felony charges.” (King, supra, 569 

U.S. at p. 442.) And as a matter of ordinary usage, a felony is considered a 

“serious” offense. (See, e.g., Carachuri-Rosendo v. Holder (2010) 560 U.S. 563, 

574 [“A ‘felony,’ we have come to understand, is a ‘serious crime usu[ally] 

punishable by imprisonment for more than one year or by death.’ ”].) Though the 

court also occasionally referred to “violent” and “dangerous” crimes, King did not 

purport to limit its holding to those felonies that happen to be classified as 

“violent” or “dangerous” as a matter of state law, nor did it purport to create a new 

classification of violent offenses as a matter of federal constitutional law.2

 

2 States are, of course, under no obligation to classify any particular set of 

crimes as “violent,” and different states often classify similar crimes differently. 

Such “interstate statutory differences do not control the meaning of the Fourth 

Amendment.” (Robinson, supra, 47 Cal.4th at p. 1123; cf. Virginia v. Moore 

(2008) 553 U.S. 164, 176.) Nor does there exist a body of federal constitutional 

law that might supply a relevant classification. (Cf., e.g., Atwater v. City of Lago 

Vista (2001) 532 U.S. 318, 345 [declining to adopt a classification of “violent” 

misdemeanors for Fourth Amendment purposes].)
17

But in any event, even if the federal Constitution permitted states to 

mandate collection of DNA samples only from persons arrested for felonies 

classified as particularly serious or violent, defendant in this case was arrested for 

felony arson in violation of Penal Code section 451, subdivision (d), a crime that is 

classified as a “serious felony” under California law. (See Pen. Code, § 1192.7, 

subd. (c)(14).) Defendant does not dispute the characterization.

Defendant’s argument would thus seem to amount to a request that we 

reverse his conviction based not on any defect in the DNA Act’s application to his 

case, but based on the Act’s potential application to other, differently situated 

individuals. This is more than he may reasonably ask. The ordinary rule is “that 

one will not be heard to attack a statute on grounds that are not shown to be 

applicable to himself.” (In re Cregler (1961) 56 Cal.2d 308, 313 (Cregler).) This

rule does have limited exceptions—most commonly invoked in free speech 

cases—but none is relevant here. (Sabri v. United States (2004) 541 U.S. 600, 

609–610 (Sabri); see, e.g., United States v. Mitchell (3d Cir. 2011) 652 F.3d 387, 

415, fn. 26 (en banc) (Mitchell) [felony arrestee could not raise a successful facial 

challenge to federal DNA collection law on the ground that it applies to 

misdemeanor arrestees and is therefore overbroad]; cf. Rakas v. Illinois (1978) 439 

U.S. 128, 133–134 [“ ‘Fourth Amendment rights are personal rights which, like 

some other constitutional rights, may not be vicariously asserted.’ ”].) Outside of 

these limited exceptions, and “absent a good reason, we do not extend an 

invitation to bring overbreadth claims.” (Sabri, at p. 610.) No such reason 

appears in this case. 

Defendant next points out that the Maryland law upheld in King permitted 

collection of a DNA sample only of arrestees “charged” with qualifying crimes 

(Md. Code Ann., Pub. Saf., § 2-504(b)(1)), and prohibited officials from testing 

the sample or loading the profile into the statewide database until after the arrestee 
18

was arraigned and a judicial officer determined that the arrest was based on 

probable cause (id., § 2-504(d)(1)). The DNA Act, by contrast, allows collection 

“immediately following arrest” and provides that the samples shall “immediately” 

be forwarded to the laboratory for analysis. (Pen. Code, § 295(i)(1)(C).) 

Defendant argues that these differences in the time prescribed for the collection 

and testing of DNA samples tip the balance against their constitutionality.

There are two elements to this argument: one concerning the timing of the 

collection, the other concerning the timing of analysis. As to the timing of 

collection, there is no reason to believe that the differences between California’s 

law and Maryland’s change the Fourth Amendment balance applicable in this 

case. Although the text of the DNA Act does purport to authorize the collection 

“immediately following arrest,” that provision was not invoked and is not at issue 

here. Rather, jail officials in this case sought to collect a sample of defendant’s 

DNA on booking, as part of the routine collection of identifying information. And

King, once again, upheld DNA collection as a “legitimate police booking

procedure,” like fingerprinting or photographing, that enables jail officials to know 

whom they have taken into custody. (King, supra, 569 U.S. at p. 466, italics 

added.) King itself involved a sample collected on booking. (Id. at p. 441; see 

King v. State (Md. 2012) 42 A.3d 549, 557.)3 And there are practical reasons for 

 

3 In his brief, defendant read the Maryland law’s reference to arrestees 

“charged” with certain offenses as prohibiting the collection of DNA until a 

prosecutor decides whether to file qualifying charges following arrest. (See Md. 

Code. Ann., Pub. Saf., § 2-504(b)(1).) But the Attorney General notes that in 

Maryland, charges are often filed by the police officer, rather than the prosecutor. 

(Md. Rules, rule 4-211(b)(2).) The high court’s opinion in King did not address 

the meaning or significance of this provision of the Maryland law; its analysis was 

focused not on the nature of the charging decision, but on the fact of an arrest 

supported by probable cause.
19

collecting the required DNA sample at the time of booking, along with taking

photographs and fingerprints. Among other things, if the arrestee is released 

pending adjudication, officials may not have another opportunity. (See Mario W. 

v. Kaipio (Ariz. 2012) 281 P.3d 476, 482 [“If . . . a juvenile is released pending 

adjudication and later fails to appear for trial without previously having submitted 

a buccal sample, the opportunity to obtain a DNA profile for identification 

purposes will have been lost. The State has an important interest in locating an 

absconding juvenile and, perhaps years after charges were filed, ascertaining that 

the person located is the one previously charged.”].)

As to the second point, defendant argues that it is unreasonable for officials 

to proceed to test the DNA sample once collected, and to upload an arrestee’s 

profile to the state DNA databank, before a judicial officer has found probable 

cause to support the arrest or before charges have been filed. Defendant argues 

that it is this step—the testing and recording of the arrestee’s DNA identification 

profile—that “represents the far greater intrusion upon privacy.” And a provision 

like Maryland’s ensures that this step is not taken before there is third party 

confirmation that the defendant was validly arrested and that he or she will face 

legal process for a felony offense.
20

Defendant, who has never contested that his arrest was based on probable 

cause,4 made no similar argument in the trial court; he argued that it was 

impermissible to require him to submit a DNA sample at all, not that it was 

unreasonable to do so without a guarantee that the analysis of the sample would be 

delayed until probable cause was confirmed by a neutral magistrate or charges 

were filed. We observe, however, that the reasoning of King itself does not lend 

substantial support to the argument that such a guarantee is required under these 

circumstances. Again, King approved “DNA identification”—which necessarily 

involves both taking and analyzing the sample—as a “legitimate police booking 

procedure” that enables law enforcement to know whom they have in custody. 

(King, supra, 569 U.S. at pp. 465–466.) That interest is one that attaches as soon 

as the suspect is “formally processed into police custody.” (Id. at pp. 449–450.) 

The court attached no significance to the timing provision of the Maryland statute 

on which defendant relies. The point was, rather, raised primarily in the dissenting 

opinion, which argued that delaying DNA testing until arraignment undermined

the argument that the requirement qualifies as a reasonable booking procedure. 

(Id. at pp. 471–472 (dis. opn. of Scalia, J.).)

Defendant contends that the timing of analysis nevertheless ought to figure 

in the equation because, as a practical matter, officers ordinarily will not receive a 

 

4 On the contrary, it appears that defendant acknowledged from the outset 

that there was probable cause to arrest him. While being placed in a patrol car at 

the scene, defendant spontaneously stated, “I didn’t think it would work” and 

noted that the officer who initially observed him in the act had “[p]erfect timing, 

him coming up the hill like that.” According to his own testimony at trial, 

moreover, he anticipated he would be charged for his acts. Justified as his protest 

was, he testified, he knew “how the legal system works” and that “[t]hey [we]re 

going to regard this as an illegal act.”
21

suspect’s DNA profile until well after booking in any event. When officers make 

a warrantless arrest and take a suspect into custody, due process ordinarily 

requires that a judicial officer make a probable cause determination promptly after 

booking—ordinarily within 48 hours—to justify continued pretrial detention. 

(County of Riverside v. McLaughlin (1991) 500 U.S. 44, 58–59.) (No such 

requirement applies if the arrestee is released from detention. (In re Walters

(1975) 15 Cal.3d 738, 743; see also Pen. Code, § 849, subd. (a).)) By contrast, 

defendant notes, in California it has typically taken much longer—at the time of 

briefing, an average of 30 days—to generate an identification profile from an 

arrestee’s DNA sample. (See King, supra, 569 U.S. at p. 454 [citing the same 

statistic].) Defendant argues that in view of the delays already associated with 

sample processing, it would pose a negligible burden for officials to postpone 

processing until a judge has determined whether probable cause exists and a 

prosecutor has decided whether to file charges.

Defendant’s point about average processing times is not one that escaped

the high court’s notice in King; as noted, the court itself cited the same numbers. 

The court nevertheless concluded that DNA identification is a reasonable booking 

procedure, without suggesting that its reasonableness might vary depending on 

average processing times. The reasons for this are not difficult to discern. For one 

thing, individual DNA samples may be processed more quickly than average: The 

court noted the states’ submission that some DNA identification samples in 

California have been processed significantly more quickly than others. (King, 

supra, 569 U.S. at p. 454.) Moreover, as is often the case in areas of fast-moving 

technological developments, average processing times are liable to change; the 

high court had been told that the technological capacity already exists to analyze 

DNA samples in a matter of minutes, rather than days or weeks, and that 

technology is likely to become more widespread in the near future. (Id. at p. 460; 
22

see Rapid DNA Act of 2017, Pub.L. No. 115-50 (Aug. 18, 2017) 131 Stat. 1001; 

see also 42 U.S.C. §§ 14131(a), 14135a.) The court “[took] account of these 

technical advances” (King, at p. 460) in evaluating the reasonableness of DNA 

collection and testing as a means of “prompt identification” (id. at p. 459). Given 

all this, we cannot proceed on the assumption that a rule delaying the collection or 

processing of samples until after a judicial probable cause finding or arraignment 

would pose no meaningful risk of interference with the central interest identified 

in King: the accurate identification of arrestees who are taken into police custody.

Defendant argues, not unreasonably, that we should decide this case in light 

of the conditions that prevailed at the time he refused to provide the sample, not in 

light of technological advances that might make it possible to process DNA 

samples more quickly in the future. But considering the matter from this vantage 

point does not help defendant’s case. If we assume that defendant’s sample would 

not have been processed significantly faster than the average of 30 days, as 

defendant would have us do, then we would also be bound to conclude that 

defendant would have, de facto, received the very delay he seeks: The record 

indicates that a judge found probable cause to support defendant’s felony arrest a 

little more than 24 hours after he was arrested, and he was arraigned within 48 

hours, as the law requires. In a world of 30-day processing times, defendant’s 

sample would not have been processed, or his DNA profile uploaded to the state 

DNA databank, before these events occurred.

Although defendant himself was charged and convicted, we acknowledge 

defendant’s concern about the collection of DNA samples from other individuals 

who are booked into custody but who ultimately will never be charged with a 

qualifying crime, or against whom qualifying charges will ultimately be dismissed. 

Voters responded to that concern by providing for a particular remedy—

expungement of the DNA sample and associated records—when the suspect is 
23

cleared of qualifying charges. As King illustrates, voters could also have chosen 

to require that all sample processing be postponed until after arraignment, 

regardless of technological capacity to proceed more quickly. But given the basic 

logic of King, we cannot say that the choice voters made is one that undermines 

the reasonableness of the search in this case. 

Justice Liu suggests that for purposes of deciding reasonableness of an 

arrestee’s search, an arrest should not be considered valid until there has been a 

judicial determination of its validity. (Dis. opn. of Liu, J., post, at pp. 1–2.) There 

is, however, a meaningful difference between the requirement of a valid arrest and 

a requirement that a neutral magistrate make such a determination. For example, 

in the related context of searches incident to arrest—where a valid arrest is also 

essential—there is no such preapproval requirement. (See United States v. 

Robinson (1973) 414 U.S. 218, 219–224 [approving search of the person at time of 

valid arrest made without warrant]; People v. Brisendine (1975) 13 Cal.3d 528, 

532–534 (Brisendine) [approving search for weapons upon a warrantless arrest, 

under circumstances requiring prolonged proximity to arrestees].) The arrestee 

may have an exclusionary remedy if the arrest is later determined to have been 

illegal (see 6 LaFave, Search and Seizure (5th ed. 2012) § 11.4(d), pp. 407–408), 

but the search’s reasonableness does not depend on prior judicial authorization for 

the arrest. Here, there is no dispute that the arrest was valid. To the extent the 

dissenting opinions argue for a prophylactic rule delaying the analysis of an 

arrestee’s DNA sample until probable cause for the arrest has been judicially 

determined, we again note that defendant raised no such argument in the trial court 

and we decline to decide the constitutional necessity of such a rule in a case in 

which probable cause has never been contested.

This brings us to defendant’s final point, concerning the adequacy of the 

DNA Act’s expungement procedures. As defendant notes, under the Maryland 
24

law at issue in King, an arrestee who is later exonerated is entitled to automatic 

destruction of his or her DNA sample and associated records. (King, supra, 569 

U.S. at pp. 443–444.) Under the DNA Act, by contrast, an exonerated arrestee 

ordinarily must file a written request for expungement of DNA records. (Pen. 

Code, § 299, subds. (a) & (b).)

5 Provisions of the Act can be read to suggest, 

moreover, that a trial court may not act on such a request before 180 days have 

elapsed, and the court has unreviewable discretion to grant or deny the request.

(Id., subd. (c)(1) & (c)(2)(D).) Defendant argues that these provisions, by contrast 

to Maryland’s automatic destruction provisions, mean that a DNA profile can be 

generated and maintained in the state database even after a suspect’s arrest has 

been found to be mistaken or unlawful. What is more, he argues, the provisions 

make it possible for the state to retain the DNA sample and associated records for 

an extended period of time—perhaps even indefinitely—after the prosecutor has 

declined to file or has dismissed charges, or after those charges have failed to yield 

a conviction. In sum, defendant argues, the DNA Act’s expungement provisions 

are insufficient to protect the privacy rights of felony arrestees who are later found 

to have been wrongly arrested or who are cleared of wrongdoing.

King does not speak directly to the issue defendant raises concerning the 

adequacy of the DNA Act’s expungement procedures. Although the high court 

mentioned Maryland’s automatic destruction provisions in passing, it attached no 

significance to them in its constitutional analysis. (King, supra, 569 U.S. at 

pp. 443–444.) Rather, the court responded to privacy concerns about the state’s 

 

5 A different provision of the DNA Act requires the Department of Justice 

DNA Laboratory to “remove [a] suspect sample from its databank files and 

databases” after two years upon confirmation that the “person is no longer a 

suspect in a criminal investigation.” (Pen. Code, § 297, subd. (c)(2).) The parties 

have not addressed the relevance of this provision, if any.
25

processing of DNA samples by emphasizing features of the Maryland law that are 

shared by California’s: namely, the analysis of a sample involves the processing 

only of loci from “noncoding parts of the DNA that do not reveal the genetic traits 

of the arrestee,” and the law strictly prohibits the misuse of DNA records for any 

purpose other than identification. (Id. at p. 464; see id. at p. 465; Pen. Code, 

§ 299.5.)

The court’s failure to mention the expungement provisions does not

necessarily mean that they are irrelevant to the constitutional analysis, however. 

To be sure, the retention of an arrestee’s fingerprints, photographs, and other 

identifying information in law enforcement files generally has not been thought to 

raise constitutional concerns, even though the arrestee may later be exonerated. 

(Loder v. Municipal Court (1976) 17 Cal.3d 859, 864–869; People v. McInnis

(1972) 6 Cal.3d 821, 826.) But the question defendant raises is whether, given the 

uniquely sensitive nature of DNA information, a different rule should apply here: 

one that calls not only for expungement, but for automatic expungement of an 

arrestee’s DNA sample, DNA identification profile, or both after an arrest has 

been shown to be invalid or after an arrestee is cleared of charges, or both.

Whether the Fourth Amendment requires this added protection for the 

wrongly arrested or exonerated is, however, a question we must leave for another 

day, because defendant in this case is neither. Defendant has not been found to 

have been wrongly arrested; indeed, he has never challenged the validity of his 

arrest. Nor was he cleared of the charges that formed the basis for his arrest; he 

was promptly charged with that offense and was later convicted as charged. 

Although our dissenting colleagues argue otherwise (dis. opn. of Liu, J., post, at 

pp. 7–8; dis. opn of Cuéllar, J., post, at pp. 25–26), we are aware of no support for 

the proposition that an arrestee who, like defendant, has never claimed to be 

entitled to expungement, is nevertheless entitled to challenge the adequacy of 
26

expungement procedures. (See Mitchell, supra, 652 F.3d at p. 412 [arrestee who 

had never provided a sample and who had never sought expungement was “not in 

a position” to challenge the adequacy of the expungement provisions of the federal 

DNA collection statute].)

Again, the ordinary rule is “that one will not be heard to attack a statute on 

grounds that are not shown to be applicable to himself.” (Cregler, supra, 56 

Cal.2d at p. 313.) Further, “a court will not consider every conceivable situation 

which might arise under the language of the statute and will not consider the 

question of constitutionality with reference to hypothetical situations.” (Ibid.) By 

focusing on the facts presented by the case before us, we avoid premature 

judgment of constitutional questions, including “ ‘premature interpretatio[n] of 

statutes’ on the basis of factually bare-bones records.” (Sabri, supra, 541 U.S. at 

p. 609, quoting United States v. Raines (1960) 362 U.S. 17, 22.)

Restraint is particularly warranted here because much of defendant’s 

argument depends on assertions about the workings of the expungement 

procedures that are as yet untested and unproved. The record before us reveals 

nothing, for example, about how the expungement provisions operate in a case in 

which a judge finds no probable cause to support the arrest. The statute does make 

clear that a person who is found to have been wrongly arrested is entitled to 

expungement: it says that “a person who has no past or present qualifying 

offense” may make a request for expungement if, among other things, no 

qualifying charges have been filed “within the applicable period allowed by law”

or if qualifying charges “have been dismissed prior to adjudication by a trier of 

fact.” (Pen. Code, § 299, subd. (b)(1).) But the requirement that the arrestee make 

a written request with supporting documentation from the court or the district 

attorney, for example, appears to be aimed at dispelling any doubt as to whether 

qualifying charges may still be filed against the arrestee. (Id., § 299, subd. 
27

(c)(2)(B).) It is unclear whether or how this requirement would apply in a case in 

which a judge has ruled from the outset that the defendant’s felony arrest was 

unsupported by probable cause. 

Much the same is true about defendant’s concern that the state may 

indefinitely retain DNA information of a person who, though arrested, has been 

found innocent of any crime. Defendant contends that a prosecutor may 

unilaterally block expungement by objecting for any reason, and a trial court

likewise may deny expungement in its unconstrained discretion. It is not clear that 

he is correct on either score. It is true that the DNA Act describes a process that 

permits prosecutors to file objections to expungement (Pen. Code, § 299, subd. 

(c)(2)(D)), and speaks of trial court “discretion” to grant or deny an expungement 

request (id., § 299, subd. (c)(1)). But the DNA Act also provides that if there is no 

other legal basis for retaining the information, an exonerated arrestee “shall have 

his or her DNA specimen and sample destroyed and searchable database profile 

expunged from the databank program.” (Pen. Code, § 299, subd. (a), italics 

added.) Federal law likewise provides that a state participating in CODIS “shall 

promptly expunge” from that database the DNA profile of any person who is later 

cleared of qualifying charges. (34 U.S.C. § 12592(d)(2)(A).) And to the extent 

there is any question about the proper interpretation of the statute, it might well be 

resolved by reference to the usual rule that a statute will be interpreted to avoid 

serious constitutional questions if such an interpretation is fairly possible. (See, 

e.g., People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) Whether legislation may 

deprive the appellate courts of all modes of reviewing a trial court’s order, as 

section 299, subdivision (c)(1) might appear to do, poses such a question. (See 

Cal. Const., art VI, §§ 10, 11 [jurisdiction of appellate courts over appeals and 

writs]; Leone v. Medical Board (2000) 22 Cal.4th 660, 668 [Legislature may not 
28

restrict appellate review in a manner that would substantially impair courts’ 

constitutional powers].) 

Nor does a trial court order appear to be a necessary prerequisite to 

expungement. As the Attorney General points out, the California Department of 

Justice has created a “streamlined” process whereby eligible individuals may seek 

expungement directly from the Department, using a publicly available two-page 

form.

6 Defendant does not question the Department’s authority to create this 

alternative, “streamlined” expungement process. (See Pen. Code, § 295, subd. 

(h)(1) [authorizing the Department to adopt policies and enact regulations for the 

implementation of the DNA Act].) And although he notes that a trial court might 

have to get involved if the Department denies a valid expungement request, he 

points to no case in which such a thing has occurred.

Because defendant never sought expungement—and indeed, has never 

claimed to be entitled to seek expungement, since he was both charged with and 

ultimately convicted of a qualifying crime—we have no occasion here to resolve 

any questions that might arise about the implementation of the expungement 

provisions in other cases. It suffices to note that many of defendant’s assertions 

about the operation of the expungement process are, at this point, necessarily

speculative. This court ordinarily does not issue constitutional rulings based on 

speculation, and we will not do so here. (See, e.g., Cregler, supra, 56 Cal.2d at 

 

6 California DOJ, Streamlined DNA Expungement Application Form, 

<http://ag.ca.gov/bfs/pdf/expungement_app.pdf > [as of Apr. 2, 2018]. As the 

Attorney General notes, the Frequently Asked Questions page on the DOJ website 

indicates that the expedited expungement process is generally completed within 

two to four weeks. (See <https://oag.ca.gov/bfs/prop69/faqs#retention> [as of 

Apr. 2, 2018].)
29

p. 313; Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 

158, 172.)

7

In short, although the DNA Act differs in some ways from the Maryland 

law at issue in King, none of those differences affects the Fourth Amendment 

analysis in the specific case before us. King holds that a cheek swab is a 

reasonable booking procedure for individuals who are arrested for serious 

offenses, and defendant was asked to provide a cheek swab upon being booked 

after a valid arrest for a serious offense. Defendant’s conviction for failing to 

submit a sample of his DNA therefore did not violate the Fourth Amendment to 

the federal Constitution.

 

7 As Justice Cuéllar notes in his dissent (post, pp. 29–30), after we granted 

review in this case, the Legislature enacted versions of Penal Code sections 298 

and 299 to become operative were this court to affirm the Court of Appeal’s 

decision below. These include provisions for more automatic expungement and 

for delay in analyzing samples until probable cause for the arrest has been 

judicially determined. (Stats. 2015, ch. 487, §§ 3, 5.) 

It goes without saying that our job is not to decide which version of the 

statute we prefer, but instead to determine whether the DNA Act, as enacted by 

California voters, is constitutional as applied to defendant in the case before us. 

The legislative amendments themselves make this clear. The Legislature did not 

attempt to substitute these statutory provisions for those the voters approved; 

whether it could do so, consistent with its role under Proposition 69, is therefore a 

question not presented here. (See Prop. 69, supra, § V, subd. (c) [amendments 

may be made only “to enhance the use of DNA identification evidence for the 

purpose of accurate and expeditious crime-solving and exonerating the 

innocent”].) The Legislature instead enacted the provisions as a kind of fallback 

measure, providing that the amendments would come into force only if we affirm 

the lower court’s ruling as to the statutory sections’ unconstitutionality as applied 

in this case (presumably on a basis that would not equally undermine the validity 

of the Legislature’s conditional amendments). We accordingly focus solely on the 

law as the voters enacted it, as applied to the facts of the case before us.
30

III.

Defendant argues, and the Court of Appeal concluded on remand from 

King, that even if requiring him to furnish a DNA sample as part of the booking 

process did not violate the Fourth Amendment, it violated the parallel prohibition 

on unreasonable searches and seizures in article I, section 13 of the California 

Constitution.

We evaluate the constitutionality of searches and seizures under our state 

Constitution by employing the same mode of analysis that the high court applied 

in King, supra, 569 U.S 435. That is, we determine whether the intrusion on the 

defendant’s expectation of privacy is unreasonable by applying “a general 

balancing test ‘weighing the gravity of the governmental interest or public concern 

served and the degree to which the [challenged government conduct] advances 

that concern against the intrusiveness of the interference with individual liberty.’ ” 

(Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 29–30, quoting 

Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1338.) Defendant does not argue 

otherwise. He instead argues that we should reject King’s balancing of these 

interests as a matter of state constitutional law.

In addressing defendant’s argument, we reaffirm several long-established 

principles. First, the California Constitution is, and has always been, “a document 

of independent force” (American Academy of Pediatrics v. Lungren (1997) 16 

Cal.4th 307, 325) that sets forth rights that are in no way “dependent on those 

guaranteed by the United States Constitution” (Cal. Const., art. I, § 24). “As an

historical matter, article I and its Declaration of Rights was viewed as the only 

available protection for our citizens charged with crimes, because the federal 

Constitution and its Bill of Rights was initially deemed to apply only to the 

conduct of the federal government.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 

352–353.) While the setting changed following ratification of the Fourteenth 
31

Amendment to the United States Constitution and the selective incorporation of 

the Bill of Rights, it remains a basic tenet of our system of federalism that “the 

nation as a whole is composed of distinct geographical and political entities bound 

together by a fundamental federal law but nonetheless independently responsible 

for safeguarding the rights of their citizens.” (Brisendine, supra, 13 Cal.3d at 

p. 550.)

Second, although decisions of the United States Supreme Court interpreting 

parallel federal text are not binding, we have said they are “entitled to respectful 

consideration.” (People v. Teresinski (1982) 30 Cal.3d 822, 836 (Teresinski); cf., 

e.g., Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 [“[C]ogent reasons must 

exist before a state court in construing a provision of the state Constitution will 

depart from the construction placed by the Supreme Court of the United States on 

a similar provision in the federal Constitution.”].) This approach reflects the 

“respect due to the decision of that high tribunal, the fact that to it has been 

committed, by the consent of the states, the ultimate vindication of liberty and 

property against arbitrary and unconstitutional state legislation.” (People v. Budd

(1889) 117 N.Y. 1, 13, affd. Budd v. New York (1892) 143 U.S. 517, cited in 

Gabrielli, supra, 12 Cal.2d at p. 89.) 

We have had several occasions to address the application of these principles 

in the context of search and seizure law in particular. Today, following a 1982 

state constitutional amendment passed by voter initiative, the United States 

Supreme Court’s interpretation of the Fourth Amendment is often not only 

persuasive, but controlling in criminal cases: Under Proposition 8, the “Right to 

Truth-in-Evidence” (Cal. Const., art. I, § 28, subd. (f)(2)), added by voters in 

1982, the exclusionary rule does not apply to a search or seizure that violates 

article I, section 13, but does not violate the Fourth Amendment, and the fruits of 

such a search or seizure are admissible in a criminal trial. This means that in 
32

California criminal proceedings, issues related to the suppression of evidence 

seized by police are, in effect, governed by federal constitutional standards. (E.g., 

People v. Lenart (2004) 32 Cal.4th 1107, 1118; see In re Lance W. (1985) 37 

Cal.3d 873, 891 [upholding Proposition 8].) But when voters later enacted an 

initiative measure that would have eliminated this court’s ability to independently 

construe the California Constitution’s provisions granting certain rights to criminal 

defendants, including the right to be free of unreasonable searches and seizures, 

we explained that such far-reaching change could be accomplished only by 

constitutional revision: While our law has long reflected a “general principle or 

policy of deference to United States Supreme Court decisions,” the initiative 

measure could not “mandate the state courts’ blind obedience thereto, despite 

‘cogent reasons,’ ‘independent state interests,’ or ‘strong countervailing 

circumstances’ that might lead our courts to construe similar state constitutional 

language differently from the federal approach.” (Raven v. Deukmejian, supra, 52 

Cal.3d at p. 353.)8

Even before the passage of Proposition 8, this court ordinarily resolved 

questions about the legality of searches and seizures by construing the Fourth 

Amendment and article I, section 13 in tandem. (E.g., People v. Triggs (1973) 8 

 

8 Our colleagues in dissent would go further; they argue that we should take 

no special account of the federal high court’s interpretation of language common 

to the United States and California Constitutions. (See dis. opn. of Liu, J., post, 

pp. 11–12; dis. opn. of Cuéllar, J., post, pp. 4–5.) But as Raven v. Deukmejian

made clear in rejecting an effort to eliminate our independent interpretive 

authority altogether, the approach we have described is neither a relic of a longdistant past nor a recent innovation. We will accordingly follow this court’s longstanding policy and practice of giving meaningful and careful consideration to 

federal high court decisions construing parallel constitutional text, without in any 

way denying or denigrating our power and duty to depart from those decisions 

when sufficient reasons appear.
33

Cal.3d 884, 892, fn. 5 [“At least since the advent of Wolf v. Colorado (1949) 338 

U.S. 25, we have treated the law under article I, section 19 [now section 13], of 

our state Constitution as ‘substantively equivalent’ to the Supreme Court’s 

construction of the Fourth Amendment.”].) On various occasions, however, this 

court has also decided questions pertaining to the legality of searches and seizures 

solely under article I, section 13, when the United States Supreme Court had not 

yet decided the parallel question under the Fourth Amendment. (See, e.g., People 

v. Ruggles (1985) 39 Cal.3d at 1, 11 [“Rather than await more definitive guidance 

[from the United States Supreme Court], we turn to article I, section 13 of the 

California Constitution”]; People v. Cook (1985) 41 Cal.3d 373, 376, fn. 1

[similar].) And on some of those occasions, the high court later spoke to the 

question and reached a contrary conclusion under the Fourth Amendment. We 

have then been confronted with the question whether to adhere to our own 

precedent construing article I, section 13, as a matter of stare decisis, or instead to 

abandon our precedent in favor of the high court’s decision. (See Brisendine, 

supra, 13 Cal.3d at p. 552 [adhering to People v. Superior Court (Simon) (1972) 7 

Cal.3d 202, notwithstanding the United States Supreme Court’s later decision in 

United States v. Robinson, supra, 414 U.S. 218]; People v. Cook (1978) 22 Cal.3d 

67, 88 [adhering to the rule of Theodor v. Superior Court (1972) 8 Cal.3d 77, 

notwithstanding the United States Supreme Court’s later decision in Franks v. 

Delaware (1978) 438 U.S. 154].) 

Here, in contrast to many of our earlier cases, the United States Supreme 

Court has resolved the question before us under the Fourth Amendment. The 

question is thus not whether we should abandon our own contrary precedent, and 

any reliance interests that may have grown up around it, but whether we should 
34

reject the high court’s Fourth Amendment guidance.

9 Confronted with a similar 

situation in Teresinski, in which this court’s Fourth Amendment ruling had been 

overturned by the United States Supreme Court in United States v. Crews (1980) 

445 U.S. 463, we declined an invitation to reach the same conclusion based on 

article I, section 13, finding “no reasons . . . to justify rejecting the teaching of the 

Supreme Court” on the issue presented. (Teresinski, supra, 30 Cal.3d at p. 836.) 

The question is whether adequate reasons are present here to conclude, despite 

King, that California voters exceeded constitutional bounds in mandating the

collection of DNA sample from an individual arrested and booked on probable 

cause to believe he had committed a serious offense.

Defendant argues there are several such reasons. To begin with, he argues 

that King should be rejected because its central premise is faulty. King concluded 

that DNA collection from persons arrested for serious offenses serves a legitimate 

governmental interest in safely and accurately processing and identifying the

persons they take into custody. Defendant argues, however, that arrestee DNA 

information is not used to determine an arrestee’s identity, but “solely for 

investigation of possible other crimes.” Echoing the dissenting opinion in King

(supra, 569 U.S. at pp. 467–469 (dis. opn. of Scalia, J.)), defendant argues that 

 

9 The dissenting opinions ask why “the order in which this court decides an 

issue vis-à-vis the high court” should be of any significance. (Dis. opn. of Cuéllar, 

J., post, at p. 8; see also dis. opn. of Liu, J., post, at p. 12.) In reviewing this 

court’s past practice, our answer is straightforward: in instances where this court 

had previously decided an issue, that decision carried the persuasive force of stare 

decisis we always accord our own precedents, which had then to be balanced 

against the persuasive force of the contrary United States Supreme Court decision. 

In instances where we had not previously decided an issue, no similar 

counterbalance existed.
35

gathering DNA information for this purpose is unreasonable in the absence of a 

warrant or individualized suspicion.

In evaluating defendant’s argument, we do not write on a blank slate. As 

noted, in Robinson, supra, 47 Cal.4th 1104, this court upheld against a Fourth 

Amendment challenge the practice of mandatory collection of DNA samples from 

convicted felons. This court so held precisely because of the capacity of DNA 

sampling to provide accurate and reliable identification of criminal offenders. 

This court recognized that DNA samples, like fingerprints, may also be used to 

establish a suspect’s involvement in crimes. (Id. at pp. 1120–1121.) Indeed, the 

DNA sample taken from the defendant in Robinson was used for that purpose, and 

led to his prosecution for an unrelated crime. But this court concluded that the 

search was reasonable because DNA testing is, like fingerprinting, a means of 

identification, and “individuals in lawful custody cannot claim privacy in their 

identification.” (Id. at p. 1121.) 

Robinson, like King, recognized that suspects can change their names, 

assume a false identity using forged documents, change their hair color, have 

tattoos removed, have plastic surgery, and change their eye color with contact 

lenses. But it is impossible to alter a DNA profile. Thus, as Robinson explained, 

“ ‘for purposes of identifying “a particular person” as the defendant, a DNA 

profile is arguably the most discrete, exclusive means of personal identification 

possible.’ ” (Robinson, supra, 47 Cal.4th at p. 1134, quoting State v. Dabney

(Wis. 2003) 663 N.W.2d 366, 372.) “ ‘ “A genetic code describes a person with 

far greater precision than a physical description or a name.” ’ ” (Ibid.) For that 

reason, this court upheld an arrest warrant describing the arrestee by only his DNA 

profile. (Robinson, at p. 1137.) 

California law, like federal law, has also recognized that identification of 

arrestees is not an end in itself; rather, the primary purpose of identification is to 
36

facilitate the gathering of information about the arrestee contained in police 

records, which in turn informs decisions about how to proceed with the arrestee. 

(Loder v. Municipal Court, supra, 17 Cal.3d at pp. 866–867 [upholding limited 

retention and use of arrest records, including fingerprints and other identifying 

information].) Our law is thus consistent with the high court’s observation that 

“[t]he task of identification necessarily entails searching public and police records 

based on the identifying information provided by the arrestee to see what is 

already known about him.” (King, supra, 569 U.S. at p. 451.) “In this respect the 

use of DNA for identification is no different than matching an arrestee’s face to a 

wanted poster of a previously unidentified suspect; or matching tattoos to known 

gang symbols to reveal a criminal affiliation; or matching the arrestee’s 

fingerprints to those recovered from a crime scene. . . . [DNA testing] uses a 

different form of identification than a name or fingerprint, but its function is the 

same.” (Ibid.)

As counsel confirmed at oral argument, defendant does not dispute that it is 

reasonable for officers to check an arrestee’s fingerprints against “electronic 

databases of known criminals and unsolved crimes.” (King, supra, 569 U.S. at 

p. 451.) This, he says, is because fingerprints are capable of serving a “genuine”

identification purpose, while a DNA profile is not. To be sure, a DNA profile is 

not, at least under present technological conditions, generated immediately or 

nearly immediately, in the manner of fingerprints. But as the high court noted in 

King, the immediate availability of fingerprints for identification purposes is also a 

relatively recent development; before the FBI introduced its electronic fingerprint 

database in 1999, processing fingerprint submissions often took “ ‘weeks or 

months.’ ” (Id. at p. 459.) Such delays have not been thought to undermine the 

basic identification purposes of the information. (See, e.g., United States v. Kelly

(2d Cir. 1932) 55 F.2d 67, 69, 70 [“Finger printing seems to be no more than an 
37

extension of methods of identification long used in dealing with persons under 

arrest for real or supposed violations . . . .” “It can really be objected to only 

because it may furnish strong evidence of a man’s guilt.”].) 

As the high court explained in King, “[t]he question of how long it takes to 

process identifying information obtained from a valid search goes only to the 

efficacy of the search for its purpose of prompt identification, not the 

constitutionality of the search.” (King, supra, 569 U.S. at p. 459.) Even if a DNA 

profile is not generated until weeks or months after the initial booking, the 

information it yields about the arrestee and his criminal history can still have an 

“important bearing” on the processing of the arrestee—whether, for example, to 

revisit an initial determination to release the arrestee or to impose new release 

conditions. (Id. at p. 460.) Information obtained after initial booking may also 

influence the jailer’s decision about where to house the arrestee.

To the extent defendant means to argue that fingerprinting simply makes 

DNA identification superfluous, we have no adequate basis for concluding that is 

so. Fingerprinting and DNA identification are not simply substitutes for one 

another. (Robinson, supra, 47 Cal.4th at p. 1134.) Fingerprinting alone would not 

have revealed, for example, that there was an outstanding warrant for the 

defendant’s arrest in Robinson. And as the court in King noted, “[i]n considering 

laws to require collecting DNA from arrestees, government agencies around the 

Nation found evidence of numerous cases in which felony arrestees would have 

been identified as violent through DNA identification matching them to previous 

crimes but who later committed additional crimes because such identification was 

not used to detain them.” (King, supra, 569 U.S. at p. 454.)

Defendant also argues that we should reject King as a matter of state 

constitutional law because King “ignored the highly sensitive nature of the genetic 

data contained in the collected DNA,” and “did not address what federal circuit 
38

courts have recognized as the more significant privacy implications posed by the 

state’s subsequent analysis and retention of the sensitive information contained in 

DNA.” The criticism is misplaced. Contrary to defendant’s characterization, the 

court in King recognized that the privacy interests at stake extended beyond the 

“minimally invasive” physical collection of the DNA sample by buccal swab. 

(King, supra, 569 U.S. at p. 460.) As noted above, the court acknowledged 

concerns about the genetic information contained in the collected DNA and its 

subsequent analysis. It explained that CODIS testing is designed to reveal nothing 

more about the arrestee than his or her identity, and that state law forbade the use 

of DNA information for nonidentification purposes. (Id. at pp. 464–465.) But the 

court acknowledged that if scientific advances or other developments mean that 

CODIS testing will now lead to discovery of personal medical information, a new 

Fourth Amendment analysis will be required. (Ibid.)

We, too, are mindful of the heightened privacy interests in the sensitive 

information that can be extracted from a person’s DNA. These interests implicate 

not only article I, section 13, but the privacy rights enjoyed by all Californians 

under the explicit protection of article I, section 1 of the California Constitution. 

(See, e.g., Lewis v. Superior Court (2017) 3 Cal.5th 561, 569.) But our cases have 

also recognized that safeguards against the wrongful use or disclosure of sensitive 

information may minimize the privacy intrusion when the government accesses 

personal information, including sensitive medical information. (E.g., id. at 

pp. 576–577 [upholding the constitutionality of government access to prescription 

drug record database under article I, section 1 of the California Constitution].) 

Here, the DNA Act makes the misuse of a DNA sample a felony, punishable by 

years of imprisonment and criminal fines. (Pen. Code, § 299.5.) These strong 

sanctions substantially reduce the likelihood of an unjustified intrusion on the 

suspect’s privacy. Like the King court, we acknowledge the possibility that 
39

technological change might alter the privacy interests at stake, requiring a new 

constitutional analysis. But we are no more inclined than that court to decide 

cases on the basis of speculation about future developments that may not come to 

pass.

Defendant next argues that this court should reject King because article I, 

section 13, gives arrested suspects greater privacy rights than they possess under 

the Fourth Amendment. Defendant points to decisions of this court holding that 

article I, section 13 forbids officers from conducting so-called “ ‘accelerated 

booking search[es]’ ” in the field at the time of arrest (People v. Laiwa (1983) 34 

Cal.3d 711, 726–728); from conducting full body searches of arrested suspects 

before determining whether they will be cited and released without being booked 

(People v. Longwill (1975) 14 Cal.3d 943, 951–952 (Longwill)); and from 

conducting searches of personal effects incident to a citation or arrest for a traffic 

violation, absent reason to believe the effects contain weapons or contraband 

(Brisendine, supra, 13 Cal.3d at pp. 548–552; People v. Norman (1975) 14 Cal.3d 

929, 938). In the latter cases, we rejected the rule of United States v. Robinson, 

supra, 414 U.S. 218, which, as we described it in Longwill, permits “full body 

searches of all individuals subjected to custodial arrest,” as well as their effects, 

“regardless of the offense, and regardless of whether the individual is ultimately to 

be incarcerated.” (Longwill, supra, 14 Cal.3d at p. 951.)

But what motivated these decisions was not principally a difference in 

opinion with the federal courts about the scope of legitimate privacy rights of 

persons subject to custodial arrest. California law and federal law alike recognize 

that an arrestee has reduced privacy interests upon being taken into police custody, 

but that reduced privacy interests do not mean zero privacy interests—which is to 

say, “[n]ot every search ‘is acceptable solely because a person is in custody.’ ” 

(Riley v. California, supra, 134 S.Ct. at p. 2488, quoting King, supra, 569 U.S. at 
40

p. 463.) Rather, the cases on which defendant relies all turn on a different 

evaluation of legitimate law enforcement needs when arresting suspects in the 

field. As relevant here, this court concluded that the rationales for conducting full 

booking searches before a defendant enters custody do not apply to all persons 

cited or arrested in the field, since “it is factually demonstrable that a substantial 

number of the arrestees will never see the inside of a jail cell.” (Longwill, supra, 

14 Cal.3d at p. 951.) In each case, we explained, “the same factors are operative: 

the potential harm to the officer if the arrestee is armed justifies a limited weapons 

search, but a full booking search is ‘inappropriate in the context of an arrestee who 

will never be subjected to that process.’ ” (Id. at p. 950, quoting Brisendine, 

supra, 13 Cal.3d at p. 547.)

The question before us, by contrast, does not concern the constitutionality 

of a booking search conducted immediately upon arrest, but a booking search 

conducted at the time of booking, and justified by an interest in accurate 

identification that applies to all persons who are taken into police custody 

following a valid arrest for a serious offense. Cases concluding that full booking 

searches are inappropriate for arrestees who will never be booked into jail are thus 

of limited relevance here. 

Finally, defendant argues that even if the differences between the DNA Act 

and the law at issue in King do not alter the Fourth Amendment analysis, they 

should alter the state constitutional analysis. For reasons already given, these 

differences do not change our assessment of the constitutionality of the DNA Act 

as applied in defendant’s case. Officials asked defendant for a DNA sample upon 

booking, after he was arrested on probable cause for a serious offense, and as he 

was entering pretrial detention. Under the circumstances before us, the 

requirement was not unreasonable.
41

IV.

Our holding today is limited. The sole question before us is whether it was 

reasonable, under either the Fourth Amendment or article I, section 13 of the 

California Constitution, to require the defendant in this case to swab his cheek as 

part of a routine jail booking procedure following a valid arrest for felony arson. 

Because we conclude the requirement was reasonable as applied to defendant, we 

hold he is subject to the statutory penalties prescribed in Penal Code section 298.1. 

Although defendant was arrested on probable cause for felony arson and 

was ultimately convicted of that offense, our dissenting colleagues argue that we 

should reach beyond the facts of the case before us to strike down some or all of 

the DNA Act’s provisions as they apply to other categories of arrestees. They 

argue that we should consider defendant’s reasonable expectations about the use 

and retention of his DNA sample at the time of booking, and we should do so from

behind a “veil of ignorance,” treating defendant as though his circumstances were 

“indistinguishable” from a suspect who is wrongly or pretextually arrested, or 

against whom charges are never brought, or who is ultimately acquitted of any 

charged offenses. (Dis. opn. of Cuéllar, J., post, at p. 28; see also dis. opn. of Liu, 

J., post, at pp. 1–2.) 

In assessing whether the demand for a sample of an arrestee’s DNA was 

reasonable under article I, section 13, we agree that it may be appropriate to 

consider not only the minimal nature of the physical intrusion associated with a 

buccal swab, but the arrestee’s reasonable expectations about what would happen 

to the sample after collection. 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 (specifically, a numerical profile 

describing noncoding parts of the arrestee’s DNA); the legal protections against 

possible misuse of the profile or the sample (including felony sanctions for 
42

knowing improper use or dissemination); and the availability of procedures for 

removing the profile from the database and destroying the sample should the basis 

for the arrestee’s inclusion dissipate. 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. And we note, as a purely practical matter, whatever apprehension 

defendant might have had about the adequacy of the Act’s protections for 

individuals who are found to have been wrongly arrested, for example, would 

certainly have been mitigated by his own knowledge of the circumstances of his 

arrest. (Here, the record shows that defendant knew from the outset that he had 

been apprehended in the act of setting fire to the tires of a police car and 

anticipated that he would be prosecuted for his acts, to which he would later 

confess at trial. (See fn. 4, ante.)) To be sure, as explained above, defendant was 

entitled to the full scope of constitutional protection against unreasonable 

searches, despite his arrest on evident probable cause. And had he later found 

himself in a position to seek expungement of his sample and profile and found the 

statutory procedures inadequate, he would have been entitled to challenge the 

retention of his information on that basis.

Not all arrestees will be comparably situated to the defendant in this case. 

An individual who, unlike defendant, is arrested in the absence of probable cause

might reasonably anticipate that charges will never be brought and any attempted 

prosecution will inevitably fail.10 And such an arrestee may, at least in some 

 

10 Justice Liu (dis. opn., post, at p. 9) invokes language from Florida v. 

Bostick (1991) 501 U.S. 429, 437–438, which decided a question of detention in 

the context of random police requests to search bus passengers’ luggage. The 

point of the cited passage of Bostick is that a person’s knowledge he or she has 

something to hide does not convert a consensual encounter into a detention. The 

(footnote continued on next page)
43

circumstances, have a valid as-applied challenge to the adequacy of the DNA 

Act’s expungement procedures or to application of the Act’s other operative 

provisions, in addition to the other remedies available for unlawful arrest. (Cf. 

People v. McInnis, supra, 6 Cal.3d at p. 826 [photograph taken pursuant to an 

illegal arrest could be shown to a witness asked to identify the perpetrator of a 

subsequent crime where there was no evidence the police had “ ‘exploited’ ” the 

earlier illegal arrest].) We note that a group of plaintiffs in federal court have 

already challenged the law’s application to those who are never charged with any 

crime. (See Haskell v. Harris (filed July 18, 2014, N.D.Cal. Civ. Case No. C 09-

04779 CRB, docket #146), Motion to Create Subclasses, p. 1 [seeking certification 

of subclass consisting of arrestees compelled to submit samples under DNA Act 

“unless they are actually charged with a felony offense”].) We of course take no 

view on the merits of any such challenges. We only note them for purposes of

contrast with this case, in which defendant bases his challenge to his misdemeanor 

refusal conviction on the potential for constitutional deprivation under 

circumstances that are not, in fact, present here.

To entertain defendant’s arguments here would convert our decision in this 

case, which concerns only the validity of defendant’s conviction for violation of 

Penal Code section 298.1, into the equivalent of facial constitutional review of the 

DNA Act as it might be applied to other arrestees. But the DNA Act itself 

instructs that the validity of the Act as applied to defendant does not depend on its 

 

(footnote continued from previous page)

passage tells us nothing about how to judge the depth of privacy intrusion 

involved in a postarrest demand for a DNA sample based not on the collection of 

the sample itself, but based on the likelihood of future use or retention of the 

sample under various conditions that did not, in fact, obtain in this case.
44

validity as it might apply to others. (Prop. 69, supra, § V, subd. (b); see p. 6, 

ante.) And our jurisprudence likewise counsels us to follow a narrower course. 

While “passing on the validity of a law wholesale may be efficient in the abstract,”

the law teaches that we should ordinarily focus on the circumstances before us in 

determining whether the work of a coequal branch of government may stand or 

must fall. (Sabri, supra, 541 U.S. at p. 609.) We accordingly abide by what has 

been called a “ ‘cardinal principle of judicial restraint—if it is not necessary to 

decide more, it is necessary not to decide more.’ ” (People v. Contreras (2018) 4 

Cal.5th 349, 381.)

In sum: Defendant raises a number of concerns about the potential 

application of the DNA Act in other cases involving other, differently situated 

arrestees. He also raises concerns that changes in technology might open up new 

prospects for using his DNA samples and profiles in ways that are uniquely 

invasive of personal privacy. We are mindful of these concerns, and we recognize 

that the DNA Act may raise additional constitutional questions that will require 

resolution in other cases.

In addressing the concerns defendant has raised here, however, we are also 

mindful of our role in reviewing a law duly enacted by California voters in the 

exercise of their initiative power. We have often said that “it is our solemn duty to 

jealously guard” the initiative power secured by the California Constitution, and 

that we accordingly may not strike down voter measures “unless their

unconstitutionality clearly, positively, and unmistakably appears.” (Legislature v. 

Eu (1991) 54 Cal.3d 492, 501.) Whatever else this duty might entail, it surely 

entails an obligation to avoid invalidating the work of the California electorate on 

the ground that “the law would be unconstitutionally applied to different parties 

and different circumstances from those at hand.” (Sabri, supra, 541 U.S. at 

p. 609; see Cregler, supra, 56 Cal.2d at p. 313.)
45

The judgment of the Court of Appeal is reversed.

KRUGER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.
DISSENTING OPINION BY LIU, J. 

According to today’s opinion, “[t]he sole question before us is whether it was 

reasonable, under either the Fourth Amendment or article I, section 13 of the California 

Constitution, to require the defendant in this case to swab his cheek as part of a routine 

jail booking procedure following a valid arrest for felony arson.” (Maj. opn., ante, at 

p. 41, italics added.) This statement of the issue is misleading.

The DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act) 

requires collection of DNA from all adult felony arrestees “immediately following arrest” 

and requires samples to be “forwarded immediately” to the laboratory for analysis. (Pen. 

Code, § 295(i)(1)(A), (C).) Buza was arrested on January 21, 2009. At booking a few 

hours later, a police officer requested a cheek swab from Buza under penalty of law. 

Buza refused. It was not until the next day, January 22, 2009, that a judge found 

probable cause to believe Buza committed arson. On January 23, 2009, the district 

attorney filed a complaint charging Buza with arson and related offenses as well as 

unlawful refusal to provide a DNA specimen on January 21, 2009 (id., § 298.1, 

subd. (a)). The question is whether Buza can be convicted of refusing to provide his 

DNA at booking prior to any judicial determination of whether he was validly arrested. 

Today’s opinion does not explain why the fact that Buza was found “validly arrested on 

probable cause to believe he had committed felony arson, and . . . was promptly charged 

with (and ultimately convicted of) that offense” (maj. opn., ante, at p. 15) has any bearing 

on whether it was lawful to require him to provide his DNA before any of those 

determinations were made.
2

The court says that a “valid arrest” in this context does not require “a judicial 

determination of its validity.” (Maj. opn., ante, at p. 23.) But this assertion, even if true, 

does not disturb the main premise of the question presented: For purposes of 

constitutional analysis, Buza is no different than any felony arrestee who has not been 

charged, convicted, or found by a neutral magistrate to be lawfully detained. This point 

is critical because it brings into focus the startling breadth of DNA collection and 

retention authorized by the statute. This is not a scheme carefully calibrated to identify 

felony offenders. Instead, it can be fairly described as a biological dragnet. As explained 

below, and for the reasons stated in Justice Cuéllar’s dissent, the DNA Act violates the 

prohibition on unreasonable searches and seizures in the California Constitution. 

According to the Office of the Attorney General, there are 200,000 to 300,000 

felony arrests in California every year. (Cal. Dept. of Justice, Crime in California 2016 

(Aug. 17, 2017) p. 49.) But not all arrests end in convictions; far from it. Here are the 

Attorney General’s data on dispositions of adult felony arrests for each year since 2009, 

when the DNA Act started requiring all such arrestees to provide DNA samples 

immediately upon arrest:

Total

Law 

enforcement 

releases

Complaints 

denied

Dismissed, 

acquitted Convicted

# # % # % # % # %

2016 207,022 7,058 3.4 36,588 17.7 25,961 12.5 137,415 66.4

2015 242,460 7,537 3.1 38,733 16.0 33,908 14.0 162,282 66.9

2014 315,782 10,227 3.2 48,235 15.3 39,632 12.6 217,688 68.9

2013 305,503 10,525 3.4 45,273 14.8 36,315 11.9 213,390 69.8

2012 295,465 9,572 3.2 48,029 16.3 35,451 12.0 202,413 68.5

2011 292,231 9,780 3.3 45,988 15.7 40,642 13.9 195,821 67.0

2010 298,647 9,980 3.3 46,054 15.4 40,793 13.7 201,820 67.6

2009 306,170 9,894 3.2 43,317 14.1 45,000 14.7 207,959 67.9

Total 2,263,280 74,573 3.3 352,217 15.6 297,702 13.2 1,538,788 68.0
3

(Id. at table 37, p. 49.) These data show that from 2009 to 2016, nearly one in five felony 

arrests did not result in prosecution, and almost one in three — a total of 724,492 arrests 

— did not result in a conviction.

Each of those arrests triggered the requirement to provide a DNA sample. Yet the 

state has no legal basis for retaining the DNA sample or profile if no charges are filed, if 

the charges are dismissed, if the person is acquitted or found not guilty or factually 

innocent, or if the conviction is reversed and the case is dismissed, unless there is some 

other basis such as a prior offense that qualifies the person for inclusion in the state DNA 

database. (Pen. Code, § 299, subds. (a), (b).) The Judicial Council of California, 

pursuant to its reporting obligations under Penal Code section 1170.45, has reported that 

from 2009 to 2016, between 15 and 20 percent of felony arrestees had no criminal record, 

between 14 and 19 percent had one or more prior prison commitments, and around 66 

percent had a criminal record with no prior prison commitment (so-called 

“ ‘miscellaneous’ ” records), a category that presumably includes arrestees with only 

misdemeanor convictions for which DNA collection is not authorized. (See, e.g., Jud. 

Council of Cal., Disposition of Criminal Cases According to the Race and Ethnicity of 

the Defendant (Sept. 20, 2017) p. 15 (Disposition of Criminal Cases) [15 percent of 

felony arrestees in 2016 had no criminal record, 19 percent had one or more prior prison 

commitments, 66 percent had miscellaneous records]; Jud. Council of Cal., Disposition 

of Criminal Cases According to the Race and Ethnicity of the Defendant (2011) [20 

percent of felony arrestees in 2009 had no criminal record, 14 percent had one or more 

prior prison commitments, 66 percent had miscellaneous records].) The percentage of 

felony arrestees with no prior convictions or only misdemeanor convictions is likely 

higher among those who are not charged or not convicted than among felony arrestees 

overall. Thus, even assuming that a substantial portion of the 724,492 arrests from 2009 

to 2016 that resulted in no conviction involved persons with a prior (or subsequent) 
4

qualifying offense, there are tens if not hundreds of thousands of individuals who have 

been required to provide DNA samples that the state has no legal basis for retaining.

The statute sets forth a process for expungement, but this process is not adequate 

to allay constitutional concerns. In contrast to the automatic expungement provisions of 

the state law at issue in Maryland v. King (2013) 569 U.S. 435, 443–444 (King), 

California’s DNA Act provides that a person seeking expungement “must send a copy of 

his or her request to the trial court of the county where the arrest occurred, or that entered 

the conviction or rendered disposition in the case, to the DNA Laboratory of the 

Department of Justice, and to the prosecuting attorney of the county in which he or she 

was arrested or[] convicted[] or adjudicated, with proof of service on all parties.” (Pen. 

Code, § 299, subd. (c)(1).) The Department of Justice “shall destroy” the DNA 

specimen, sample, and searchable profile “upon receipt of a court order that verifies the 

applicant has made the necessary showing at a noticed hearing, and that includes all of 

the following: [¶] (A) The written request for expungement pursuant to this section. [¶] 

(B) A certified copy of the court order reversing and dismissing the conviction or case, or 

a letter from the district attorney certifying that no accusatory pleading has been filed or 

the charges which served as the basis for collecting a DNA specimen and sample have 

been dismissed prior to adjudication by a trier of fact, the defendant has been found 

factually innocent, the defendant has been found not guilty, the defendant has been 

acquitted of the underlying offense, or the underlying conviction has been reversed and 

the case dismissed. [¶] (C) Proof of written notice to the prosecuting attorney and the 

Department of Justice that expungement has been requested. [¶] (D) A court order 

verifying that no retrial or appeal of the case is pending, that it has been at least 180 days 

since the defendant or minor has notified the prosecuting attorney and the Department of 

Justice of the expungement request, and that the court has not received an objection from 

the Department of Justice or the prosecuting attorney.” (Id., subd. (c)(2).)
5

The extensive documentation, notice to multiple parties, judicial hearing, and 

additional steps required for expungement place a significant burden on eligible persons, 

assuming they are even aware of the process. In addition, although the statute says a 

person whose arrest resulted in no charge or conviction “shall have his or her DNA 

specimen and sample destroyed and searchable database profile expunged” if the state 

has “no legal basis for retaining” them (Pen. Code, § 299, subd. (a)), the statute also says: 

“The court has the discretion to grant or deny the request for expungement. The denial of 

a request for expungement is a nonappealable order and shall not be reviewed by petition 

for writ.” (Id., § 299, subd. (c)(1).) It is not clear what “discretion” the court may 

exercise in deciding whether to grant or deny a request, or what remedy is available if the 

court denies a valid request. Further, it is not clear what consequence ensues if the state 

does not comply with a court order granting a request for expungement. (Id., § 299, 

subd. (d) [“Any identification, warrant, probable cause to arrest, or arrest based upon a 

databank or database match is not invalidated due to a failure to expunge or a delay in 

expunging records.”].)

The Department of Justice has sought to expedite the process by creating a 

“Streamlined DNA Expungement Application Form.” (Cal. Dept. of Justice, Proposition 

69 (DNA) <https://oag.ca.gov/bfs/prop69> [as of Apr. 2, 2018] [“Remove Your DNA 

Sample from the DNA Database”]; cf. 34 U.S.C. § 12592(d)(2) [requiring states to 

“promptly expunge” the DNA analysis of qualified persons as a condition of state access 

to the DNA index maintained by the FBI].) But the reality is that few DNA samples, 

once collected, are ever removed.

The Department of Justice DNA Laboratory publishes monthly reports on the 

number of samples added or removed from its inventory as well as historical totals since 

the DNA collection program began in 2004. As of February 2018, the DNA Laboratory 

had received 2,792,083 DNA samples and had removed 44,314 samples, or 1.6 percent, 

since the program began. (Cal. Dept. of Justice, Proposition 69 (DNA) 
6

<https://oag.ca.gov/bfs/prop69> [February statistics as of Mar. 28, 2018] [“DNA 

Laboratory Monthly Statistics, pdf”].) As of December 2008, the DNA Laboratory had 

removed 22,269 DNA samples from its inventory since the program began; these 

removals include “Expunged, Removed or Failed Samples, or where a New Sample was 

Requested.” (Appellees’ Response to Appellants’ Request for Judicial Notice; 

Supplemental Request for Judicial Notice and Supporting Declaration of Daniel J. 

Powell, Haskell v. Harris (filed Sept. 20, 2012, 9th Cir. case No. 10-15152) docket #103, 

Ex. A, p. 24; see Haskell v. Harris (9th Cir. 2014) 745 F.3d 1269 (en banc).) Even if we 

assume that all reported removals are expungements, the total number of expungements 

from January 2009, when the current DNA law went into effect, until February 2018 

would be only 22,045 — i.e., the difference between 44,314 (the total number of 

removals through February 2018) and 22,269 (the total number of removals through 

December 2008). This is a small fraction of the large population of individuals since 

2009 whose felony arrests have resulted in no charge or conviction, and who have no 

other basis for inclusion in the state DNA database. It is questionable whether the vast 

majority of people entitled to expungement even know about the process much less know 

how to navigate it. Indeed, we have no indication that any responsible official is ever 

required to inform an arrestee about the expungement process.

The state’s retention of DNA is troubling not only because of its sheer magnitude

but also because it predictably burdens certain groups. African Americans, who are 6.5 

percent of California’s population, made up 20.3 percent of adult felony arrestees in 

2016. (U.S. Census Bureau, QuickFacts: California (July 1, 2016) 

<https://www.census.gov/quickfacts/CA> [as of Apr. 2, 2018]; Crime in California 2016, 

supra, at p. 36.) Yet they comprised 24.3 percent of felony arrestees who were released 

by law enforcement or the prosecuting attorney in 2016 before any court disposition. 

(Disposition of Criminal Cases, supra, at p. 10.) Non-Hispanic whites, by contrast, 

comprised 31.2 percent of felony arrestees but only 27.0 percent of felony arrestees 
7

released by law enforcement or the prosecuting attorney. (Crime in California 2016, 

supra, at p. 36; Disposition of Criminal Cases, supra, at p. 10.) The fact that felony 

arrests of African Americans disproportionately result in no charges or dropped charges 

means that African Americans are disproportionately represented among the thousands of 

DNA profiles that the state has no legal basis for retaining.

Penal Code section 297, subdivision (c)(2) provides an alternative route for 

expungement: “The law enforcement investigating agency submitting a specimen, 

sample, or print impression to the DNA Laboratory of the Department of Justice or law 

enforcement crime laboratory pursuant to this section shall inform the Department of 

Justice DNA Laboratory within two years whether the person remains a suspect in a 

criminal investigation. Upon written notification from a law enforcement agency that a 

person is no longer a suspect in a criminal investigation, the Department of Justice DNA 

Laboratory shall remove the suspect sample from its databank files and databases. 

However, any identification, warrant, arrest, or prosecution based upon a databank or 

database match shall not be invalidated or dismissed due to a failure to purge or delay in 

purging records.” But it is not clear how this process, which relies on the initiative of law 

enforcement, is monitored or enforced; the language of the statute, like Penal Code 

section 299, expressly contemplates “failure” or “delay” by responsible officials. In any 

event, this expungement process may take up to two years after a person’s DNA is sent to 

the laboratory, during which time the sample remains available to law enforcement even 

if the person was never charged or convicted of a crime.

The court says it need not consider the adequacy of the expungement process 

because Buza was “charged with and ultimately convicted of a qualifying crime.” (Maj. 

opn., ante, at p. 28.) But the question is whether it was constitutional to require Buza to 

provide his DNA after his arrest on January 21, 2009 — before he was charged or 

convicted. In answering this question, it certainly matters how his DNA would be 

analyzed, used, and retained, and we must address these considerations from the vantage 
8

point that existed at the time Buza was required to provide his DNA. (See People v. Gale

(1973) 9 Cal.3d 788, 795 [“ ‘The question of the reasonableness of the officers’ conduct 

is determined on the basis of the information possessed by the officer at the time a 

decision to act is made.’ ”].) We cannot ignore the (in)adequacy of expungement — the 

statute’s only safeguard against overbroad retention — based on the fortuity that Buza 

turned out to be guilty. (See McDonald v. United States (1948) 335 U.S. 451, 453 [the 

“guarantee of protection against unreasonable searches and seizures extends to the 

innocent and guilty alike”].)

In addition, the court says collecting DNA from an arrestee before a judge has 

determined the validity of the arrest is analogous to a search incident to arrest, “where a 

valid arrest is also essential [and] there is no such preapproval requirement.” (Maj. opn.,

ante, at p. 23.) But a search incident to arrest is justified and limited by the immediate 

need to “protect[] arresting officers and safeguard[] any evidence of the offense of arrest 

that an arrestee might conceal or destroy.” (Arizona v. Gant (2009) 556 U.S. 332, 339.) 

DNA collection upon arrest does not serve any similarly pressing purpose. (Dis. opn. of 

Cuéllar, J., post, at pp. 13–14 [it takes around 30 days to generate an identification profile 

from an arrestee’s DNA sample].) Moreover, when an arrest is later found invalid by a 

neutral magistrate, a search incident to the arrest is deemed unlawful, and the evidence 

obtained is subject to suppression. (See People v. Macabeo (2016) 1 Cal.5th 1206, 

1219.) The DNA Act does not deem unlawful the collection of DNA pursuant to an 

arrest that is later found invalid; such DNA may be retained and used by law enforcement 

so long as there is no request for expungement.

The court further contends that “whatever apprehension defendant might have had 

about the adequacy of the Act’s protections for individuals who are found to have been 

wrongly arrested, for example, would certainly have been mitigated by his own 

knowledge of the circumstances of his arrest. (Here, the record shows that defendant 

knew from the outset that he had been apprehended in the act of setting fire to the tires of 
9

a police car and anticipated that he would be prosecuted for his acts, to which he would 

later confess at trial. (See fn. 4, ante.)) . . . . [¶] Not all arrestees will be comparably 

situated to the defendant in this case. An individual who, unlike defendant, is arrested in 

the absence of probable cause might reasonably anticipate that charges will never be 

brought and any attempted prosecution will inevitably fail.” (Maj. opn., ante, at p. 42, 

fn. omitted.) This seems to suggest that arrestees who know they are guilty are entitled to 

lesser constitutional protection than arrestees who believe they are innocent. Such 

reasoning contravenes the fundamental principle that “the ‘reasonable person’ test [in 

search and seizure analysis] presupposes an innocent person. See [Florida v. Royer

(1983) 460 U.S. 491, 519, fn. 4] (Blackmun, J., dissenting) (‘The fact that [respondent] 

knew the search was likely to turn up contraband is of course irrelevant; the potential 

intrusiveness of the officers’ conduct must be judged from the viewpoint of an innocent 

person in [his] position’). Accord, [Michigan v. Chesternut (1988) 486 U.S. 567, 574] 

(‘This “reasonable person” standard . . . ensures that the scope of Fourth Amendment 

protection does not vary with the state of mind of the particular individual being 

approached’).” (Florida v. Bostick (1991) 501 U.S. 429, 438.) If we are going to make 

the constitutional analysis turn on whether the defendant “knew from the outset” that he 

was guilty, then we might as well dispense with much of seizure and seizure law. (See 

People v. Schmitz (2012) 55 Cal.4th 909, 947 (conc. & dis. opn. of Liu, J.) [search and 

seizure doctrine “is built on cases involving guilty people”].)

I have no doubt that law enforcement is aided by the collection and retention of 

massive numbers of DNA profiles, whether those profiles are used to confirm a person’s 

identity, to facilitate access to criminal history or other information about a person, or to 

help solve unsolved crimes. 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 
10

general, including anyone who “applies for a driver’s license” or “attends a public

school.” (King, supra, 569 U.S. at p. 482 (dis. opn. of Scalia, J.).) Such broad-based 

policies would similarly aid law enforcement while having the virtue of being less 

discriminatory in their effects.

Indeed, the court’s analogy to fingerprinting, a less invasive and less powerful 

technology, should give us pause. (Maj. opn., ante, at pp. 35–37; see dis. opn. of Cuéllar, 

J., post, at pp. 19–22.) State law already requires individuals to provide a fingerprint in 

order to get a driver’s license (Veh. Code, § 12800, subd. (c)), to become a school teacher 

(Ed. Code, § 44340), to be a professional engineer (Cal. Code Regs., tit. 16, § 420.1), to 

be a practicing attorney (Bus. & Prof. Code, § 6054, subd. (b)), or to join many other 

occupations (id., § 144 [requiring “a full set of fingerprints for purposes of conducting 

criminal history record checks” from applicants to 29 state licensing boards, including 

nurses, pharmacists, physicians, court reporters, funeral directors, guide dog instructors, 

contractors, and accountants]). These requirements serve important public safety and law 

enforcement purposes. But if DNA matching is constitutionally justified by its 

unparalleled efficacy in serving the “ ‘same’ ” identification “ ‘function’ ” as 

fingerprinting (maj. opn., ante, at p. 36, quoting King, supra, 569 U.S. at p. 451), then it 

is not clear what constitutional principle stands in the way of requiring a DNA sample in 

every context where the law now requires a fingerprint. (See King, at p. 451 [“the only 

difference between DNA analysis and the accepted use of fingerprint databases is the 

unparalleled accuracy DNA provides”].) One need not be a diehard civil libertarian to 

have serious qualms about where all of this may lead.

I conclude with a few words about the court’s approach to state constitutional 

analysis against the backdrop of King. Today’s opinion affirms that “the California 

Constitution is, and has always been, ‘a document of independent force’ [citation] that 

sets forth rights that are in no way ‘dependent on those guaranteed by the United States 
11

Constitution’ (Cal. Const., art. I, § 24).” (Maj. opn., ante, at p. 30.) And the court is 

correct that “although decisions of the United States Supreme Court interpreting parallel 

federal text are not binding, we have said they are ‘entitled to respectful consideration.’ ” 

(Id. at p. 31.) But the court errs in framing the inquiry as “whether adequate reasons are 

present here to conclude, despite King,” that the DNA Act is unconstitutional. (Id. at 

p. 34.) In analyzing the state constitutional issue, the court takes King as the starting 

point and asks “whether we should reject the high court’s Fourth Amendment guidance.” 

(Id. at pp. 33–34, fn. omitted.) In so doing, the court appears to accord King “a 

presumption of correctness that has no sound basis in our federal system.” (Liu, State 

Constitutions and the Protection of Individual Rights: A Reappraisal (2017) 92 N.Y.U. 

L.Rev. 1307, 1314.)

“Just as the Supreme Court, when interpreting a provision of the Federal 

Constitution, does not accord a presumption of correctness to any state’s interpretation of 

an analogous state constitutional provision or even to an interpretation adopted by a 

majority of states, there is no reason why a state court, when interpreting a provision of 

its state constitution, should accord a presumption of correctness to the Supreme Court’s 

interpretation of an analogous federal constitutional provision. State courts should and 

often do give respectful consideration to relevant Supreme Court decisions, just as they 

often give respectful consideration to relevant decisions of sister states. And state courts 

may often be persuaded that the Supreme Court’s approach is correct and worthy of 

adoption, just as they may often be persuaded by a majority view among state high 

courts. But the crucial point is that state courts, as the ultimate arbiters of state law, have 

the prerogative and duty to interpret their state constitutions independently.” (Liu, supra, 

92 N.Y.U. L.Rev. at pp. 1314–1315.)

As Justice Cuéllar notes, today’s opinion provides no convincing rationale for why 

our analytical approach to a state constitutional issue should depend on “the order in 

which this court decides an issue vis-à-vis the high court.” (Dis. opn. of Cuéllar, J., post, 
12

at p. 8.) The court’s response is that “in instances where this court had previously 

decided an issue, that decision carried the persuasive force of stare decisis we always 

accord our own precedents, which had then to be balanced against the persuasive force of 

the contrary United States Supreme Court decision. In instances where we had not 

previously decided an issue, no similar counterbalance existed.” (Maj. opn., ante, at

p. 34, fn. 9.) But this statement of the obvious misses the point. It does not explain why 

our approach should be different (1) when we consider a state constitutional issue of first 

impression on which the high court has spoken under federal law, as compared to (2) 

when we consider a state constitutional issue of first impression on which the high court 

has not spoken under federal law. To be sure, in scenario (1) we should give respectful 

consideration to the views of the high court, as well as the views of other state courts that 

have decided the issue under their states’ laws. But our duty to interpret the California 

Constitution independently is no different in scenario (1) than in scenario (2). We may 

decide, in our independent judgment, that the views of the high court should be followed. 

But that is different from the mode of analysis in today’s opinion, which accords a 

presumption of correctness to the high court’s decision in King and then asks whether 

there are “sufficient reasons” to depart from King. (Id. at p. 32, fn. 8.)

Moreover, the court fundamentally missteps in attributing its deferential reading of 

King to “ ‘the fact that to [the high court] has been committed, by the consent of the 

states, the ultimate vindication of liberty and property against arbitrary and 

unconstitutional state legislation.’ ” (Maj. opn., ante, at p. 31.) It is of course true that 

the United States Supreme Court serves as a backstop against state infringements on 

constitutional rights, and when the high court issues a federal constitutional ruling, state 

courts “shall be bound thereby, any Thing in the Constitution or Laws of any State to the 

Contrary notwithstanding.” (U.S. Const., art. VI, cl. 2.) But that is not a reason for state 

courts to treat the floor of constitutional rights under federal law as a presumptive ceiling 

on constitutional rights under state law. Doing so runs counter to the basic precept that 
13

“ ‘ “federalism secures to citizens the liberties that derive from the diffusion of sovereign 

power.” ’ ” (Bond v. United States (2011) 564 U.S. 211, 221.) “The Framers concluded 

that allocation of powers between the National Government and the States enhances 

freedom” (ibid.), and a crucial feature of this freedom-enhancing allocation of powers is 

judicial federalism: “state courts no less than federal are and ought to be the guardians of 

our liberties” (Brennan, State Constitutions and the Protection of Individual Rights

(1977) 90 Harv. L.Rev. 489, 491). “State courts interpreting state law remain particularly 

well situated to enforce individual rights against the States. Institutional constraints, it 

has been observed, may limit the ability of [the United States Supreme] Court to enforce 

the federal constitutional guarantees. Sager, Fair Measure: The Legal Status of 

Underenforced Constitutional Norms, 91 Harv.L.Rev. 1212, 1217–1218 (1978). Prime 

among the institutional constraints, [the United States Supreme] Court is reluctant to 

intrude too deeply into areas traditionally regulated by the States. This aspect of 

federalism does not touch or concern state courts interpreting state law.” (Arizona v. 

Evans (1995) 514 U.S. 1, 30–31 (dis. opn. of Ginsburg, J.).) I do not see how deferring 

to high court decisions under federal law when we construe parallel provisions of state 

law serves the basic purposes of federalism, and the court has no answer on this point.

Notwithstanding today’s opinion, this court is no stranger to the importance of 

judicial federalism. In People v. Cahan (1955) 44 Cal.2d 434, we adopted the 

exclusionary rule for violations of the state constitutional prohibition on unreasonable 

searches and seizures, declining to follow the high court’s refusal to adopt a federal 

exclusionary rule in Wolf v. Colorado (1949) 338 U.S. 25. In People v. Wheeler (1978) 

22 Cal.3d 258, we held that a prosecutor’s exercise of a racially motivated peremptory 

strike in an individual case violates the state constitutional right to be tried by a fair and 

impartial jury, declining to follow the contrary federal constitutional rule set forth in 

Swain v. Alabama (1965) 380 U.S. 202. And in In re Marriage Cases (2008) 43 Cal.4th 

757, we held that laws denying same-sex couples the right to marry violate equal 
14

protection under the state constitution, even though the only high court authority on point 

at the time, Baker v. Nelson (1972) 409 U.S. 810, had dismissed a similar appeal for want 

of a substantial federal question.

In each of these instances, we interpreted the guarantees of our state constitution 

without according any deference or presumption of correctness to high court precedent. 

And on each of these issues, the high court eventually overruled its precedent and 

adopted as a matter of federal law the rule we had adopted as a matter of state law. (See 

Mapp v. Ohio (1961) 367 U.S. 643, 651–653 [overruling Wolf and citing Cahan]; Batson 

v. Kentucky (1986) 476 U.S. 79, 82–82 & fn. 1 (1986) [overruling Swain and citing 

Wheeler]; Obergefell v. Hodges (2015) 576 U.S. __, __, __ [135 S.Ct. 2584, 2605, 2610] 

[overruling Baker and citing In re Marriage Cases].) These examples show how the 

exercise of independent judgment by state courts in our system of judicial federalism 

provides a crucial safeguard for constitutional rights.

Instead of looking to these examples, today’s opinion cites Gabrielli v. 

Knickerbocker (1938) 12 Cal.2d 85, which rejected a state constitutional challenge to a 

law requiring schoolchildren to salute and pledge allegiance to the flag. (Maj. opn., ante, 

at p. 31.) I would not rely on such dubious precedent. Whatever may be said about the 

merits of the issue, the court’s analysis in Gabrielli consists of little more than uncritical 

acceptance of United States Supreme Court decisions that had rejected similar claims 

under the federal Constitution. (See Gabrielli, at p. 89 [“[C]ogent reasons must exist 

before a state court in construing a provision of the state Constitution will depart from the 

construction placed by the Supreme Court of the United States on a similar provision in 

the federal Constitution.”], quoted in maj. opn., ante, at p. 31.) Five years later, the high 

court overruled its precedent and decided the issue the other way in West Virginia State 

Board of Education v. Barnette (1943) 319 U.S. 624.

In sum, we should not indulge any suggestion that the job of protecting individual 

rights in our federal system belongs primarily to the United States Supreme Court or that 
15

the high court is invariably better positioned than state supreme courts to discharge that 

critical function. Because I do not agree with the court’s analysis of the state 

constitutional question presented or its judgment upholding Buza’s conviction for 

refusing to provide a DNA sample just hours after his arrest, I respectfully dissent. 

Having concluded that Buza’s conviction for refusing to comply with the DNA Act is 

invalid under the California Constitution, I express no view on whether it is also invalid 

under the Fourth Amendment.

LIU, J.

WE CONCUR:

CUÉLLAR, J.

PERLUSS, J.*

 

* Presiding Justice of the Court of Appeal, Second Appellate District, Division Seven, 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
DISSENTING OPINION BY CUÉLLAR, J.

In California people are protected not only by federal constitutional guarantees 

against unreasonable searches or seizures, but by state constitutional provisions 

governing privacy and prohibiting arbitrary coercion. These protections require 

courts to distinguish between routine lawful procedures, such as those governing 

collection of biological samples from convicts, and arbitrary commands purporting to 

force people who have not been convicted of anything to surrender their most private 

information. (See Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct. 2473, 

2488] (Riley) [“Not every search ‘is acceptable solely because a person is in 

custody.’ ”]; White v. Davis (1975) 13 Cal.3d 757, 766 (White) [“The inherent 

legitimacy of the police ‘intelligence gathering’ function does not grant the police the 

unbridled power to pursue that function by any and all means. In this realm, as in all 

others, the permissible limits of governmental action are circumscribed by the federal 

Bill of Rights and the comparable protections of our state Constitution.”].) Yet the 

majority today sanctions the collection and analysis of DNA samples from all adults 

arrested on felony charges –– fully one-third of all arrestees –– regardless of whether 

those individuals will ever be charged with a crime or, if charged, ever convicted. As 

Justice Liu explains in more detail, over half of these individuals are released before a 

judicial determination of probable cause. But at whatever point the arrestees are 

released, their DNA sample stays with the government until the expungement process, 

which burdens individuals and is contingent rather than automatic, runs its course if it 

ever does.
2

For all these individuals, the majority provides no protection –– except to 

say that if they are exonerated, they may file written requests for the expungement 

of their DNA records. In so holding, the majority sidesteps the problems 

associated with the collection and expungement procedures of Proposition 69, the 

DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act or the 

Act). It contends that the scope of the legitimate privacy rights of persons arrested 

is no different under our constitution than under the Fourth Amendment to the 

federal Constitution and, by implication, that our own constitution plays no role in 

determining whether the rights of a California citizen subjected to a search of his 

person and collection of his DNA have been violated. I cannot agree.

Our state Constitution provides heightened protections for the privacy 

rights of individuals, including arrestees. Those protections do not vanish merely 

because someone is arrested. An arrest itself requires probable cause –– but such 

cause, however probable, is a far cry from a conviction. Indeed, the underlying 

logic of our system of criminal investigation and enforcement is grounded in the 

distinction between the relatively low-threshold probable cause determination and 

the onerous burden the government must carry to achieve a criminal conviction. 

The government may justify a variety of investigative activities without probable 

cause –– from routine patrol of a particular geographic location to following up on 

tips or information from undercover agents. (E.g., Kyllo v. United States (2001) 

533 U.S. 27, 31–32 (Kyllo) [reiterating the “lawfulness of warrantless visual 

surveillance of a home”]; Illinois v. Gates (1983) 462 U.S. 213, 227, 243 [holding 

that a tip alone did not supply probable cause but the police follow-up 

investigation of the tip did].) But when the Act compels the collection of a DNA 

sample before a determination of probable cause, the government’s rationale for

seeking DNA samples for all felony arrestees is not sufficiently compelling to 

outweigh the intrusion on an arrestee’s privacy that accompanies the collection 
3

and storage of his personal genetic information. Though the United States 

Supreme Court may have reached a different conclusion when evaluating another 

state’s DNA collection statute under the federal Constitution, the role of our state 

charter, the unique importance it assigns to privacy, and the differences between 

the statute considered in Maryland v. King (2013) 569 U.S. 435 (King) and the 

DNA Act involved here all suggest that we should find the implicated provisions 

of the Act unconstitutional. So I respectfully dissent.

I.

What the parties in this case have asked us to decide is whether the DNA 

Act’s provisions requiring collection from all adult felony arrestees violate article 

I, section 13 of the California Constitution. So we begin by considering our state 

Constitution, its relationship to the federal charter, and where the two diverge.

Construing a different statute and a different constitution, the high court in 

King decided that the Fourth Amendment permits — in some instances —

collections of DNA from adults arrested for serious crimes. (King, supra, 569 

U.S. at p. 446.) Although such a decision merits “respectful consideration” when 

its analysis is relevant, our own constitution deserves far more than that. In 

deciding whether our own state Constitution provides protection against the search 

or seizure at issue, we are not only free, but obligated, to perform an independent 

analysis. (People v. Teresinski (1982) 30 Cal.3d 822, 835–836 (Teresinski) 

[“[T]he California courts, in interpreting the Constitution of this state, are not 

bound by federal precedent construing the parallel federal text. . . . [T]he state 

courts, in interpreting constitutional guarantees contained in state constitutions, are 

independently responsible for safeguarding the rights of their citizens.” (internal 

quotation marks omitted)].) Because of our precedent interpreting the scope of 

article I, section 13 and the relevance of article I, section 1’s explicit protection of 
4

privacy, our constitution is more solicitous of the privacy interests of arrestees 

than the Fourth Amendment.

The California Constitution is not some minor codicil to the United States 

Constitution. As the majority has no choice but to acknowledge (maj. opn., ante, 

at pp. 30–31), our state Constitution is a document of “independent force,” whose 

meaning is to be independently distilled and propagated by this court, acting in our 

authority as the state court of last resort. (Cal. Const., art. I, § 24 [making explicit 

that “[r]ights guaranteed by this Constitution are not dependent on those 

guaranteed by the United States Constitution”]; People v. Brisendine (1975) 13 

Cal.3d 528, 549–550 (Brisendine) [“the California Constitution is, and always has 

been, a document of independent force”]; People v. Longwill (1975) 14 Cal.3d 

943, 951, fn. 4 (Longwill) [stating that “in the area of fundamental civil liberties,” 

“we sit as a court of last resort” and “our first referent is California law and the 

full panoply of rights Californians have come to expect as their due”].) In cases 

where the wording of the state constitutional provision at issue parallels a phrase 

in the federal Constitution, high court opinions on the subject merit respectful 

consideration. (Teresinski, supra, 30 Cal.3d at p. 835.) But any such parallels in 

wording must not occlude our state Constitution’s force as the basic charter of 

government, which is why it is appropriate in some circumstances to take a 

different course in interpreting our state Constitution. (Ibid.)

We have done so in a variety of cases, where we concluded that 

California’s Constitution extends protections to our citizens well beyond those the 

high court has announced in the federal context. (Raven v. Deukmejian (1990) 52 

Cal.3d 336, 353–354 (Raven) [listing the “numerous decisions” from this court 

“interpreting the state Constitution as extending protection to our citizens beyond 

the limits imposed by the high court under the federal Constitution”]; see also, 

Longwill, supra, 14 Cal.3d at pp. 951–952 [holding that our state charter, unlike 
5

the federal Constitution, does not allow for carte blanche “full body searches of all 

individuals subjected to custodial arrest”]; People v. Maher (1976) 17 Cal.3d 196, 

198–203 [concluding, as in Longwill, that “the search of [an arrestee’s] person 

beyond the scope of a pat-down was unlawful under article I, section 13, of the 

California Constitution”]; People v. Cook (1978) 22 Cal.3d 67, 88 [holding that 

because a Supreme Court’s decision “would afford our citizens less protection 

than is guaranteed to them under California law,” it is “not to be followed in 

California” and that “all challenges to the veracity of a search warrant affidavit in 

our courts are to be governed by [our own precedent] and article I, section 13, of 

the California Constitution”]; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 

468, 476 [“the marketing order in question does not implicate any right to freedom 

of speech under the First Amendment, but does indeed implicate such a right 

under article I [of our state Constitution]”].)

What’s more, within the specific context of search and seizure of arrestees, 

we have been quite explicit in holding that article I, section 13 provides greater 

protection than does the Fourth Amendment. (Brisendine, supra, 13 Cal.3d at pp. 

545–546; Longwill, supra, 14 Cal.3d at p. 951 & fn. 4; People v. Norman (1975) 

14 Cal.3d 929, 939 (Norman); People v. Ruggles (1985) 39 Cal.3d 1, 9–11 

(Ruggles); see also People v. Laiwa (1983) 34 Cal.3d 711, 727 (Laiwa).) In those 

cases, we have emphasized that article I, section 13 “requires a more exacting 

standard” for search and seizure cases arising in this state. (Brisendine, supra, 13 

Cal.3d at p. 545.) We’ve also rejected the notion — which the United States 

Supreme Court has embraced — that an individual subject to custodial arrest has 

significantly diminished expectations of privacy. (Id. at p. 547 [“we cannot accept 

. . . that ‘an individual lawfully subjected to a custodial arrest retains no significant 

Fourth Amendment interest in the privacy of his person’ ”].) Even full custodial 

arrest, booking, and incarceration do not authorize the police to search an arrestee 
6

in the hope of discovering evidence of a more serious crime. (See Laiwa, supra, 

34 Cal.3d at pp. 727–728.) What these authorities make clear is as simple as it is 

important: individuals placed under arrest enjoy greater protection against 

searches of their persons and things under our state Constitution than under the 

federal counterpart.

The majority wisely avoids debating such principles. Instead, it seeks to 

limit relevance of cases like Brisendine, Longwill, Norman, and Laiwa by 

asserting that they all concern “the constitutionality of a [field] search conducted 

immediately upon arrest,” and not, as was the case with petitioner Mark Buza, a 

search “conducted at the time of booking.” (See maj. opn., ante, at p. 40.) Yet it is 

far from clear why it should matter that these authorities concern searches done in 

the field. We have not previously imposed limitations on the scope of the

constitutional protections involved that would categorically cleave the rights of 

individuals subject to searches in the field from those being compelled to provide 

their DNA at the time of booking. And existing distinctions do not detract from 

the fact that — in some circumstances — California residents have more robust 

rights than equivalent ones available under the federal Constitution. (Brisendine, 

supra, 13 Cal.3d at pp. 550–551 [“in determining that California citizens are 

entitled to greater protection under the California Constitution against 

unreasonable searches and seizures than that required by the United States 

Constitution, we are embarking on no revolutionary course”].) The question 

facing us is whether we should extend the same greater protection to our citizens 

in this situation, not whether we have done that exact thing before.1

 

1 I would also note that the DNA Act authorizes cheek swabs “immediately 

following arrest” and thus encompasses field searches. (Pen. Code § 296.1, 

subd. (a)(1)(A).)
7

The majority suggests that we should not do so because the United States 

Supreme Court decided King before we considered the issue. It implies that if the 

Supreme Court “had not yet decided the parallel question under the Fourth 

Amendment,” then we may be empowered to reach our own conclusions. (Maj. 

opn., ante, at p. 33.) But because King predated our consideration, our 

responsibility shifts from deciding the legality of the search under article I, Section 

13 to determining whether “we should reject the high court’s Fourth Amendment 

guidance.” (Id. at pp. 33–34.)

Nowhere in the majority opinion is there a persuasive justification for why 

the question is framed in terms of whether we should “reject” the United States 

Supreme Court’s “guidance.” Of course we consider United States Supreme Court 

decisions when they address the scope of a federal constitutional right analogous 

to a state right, even if we are not required on federal supremacy grounds to adopt 

the same approach. But unlike the majority, we treat our own precedent as worthy 

of –– at least –– “meaningful and careful consideration” as well. (Maj. opn., ante, 

at p. 32, fn. 8.) Our precedent makes clear that even where the relevant provision 

under our state charter shares “language [in] common” with the federal 

Constitution, we may interpret our constitution differently than how the high court 

reads the federal Constitution. (See Am. Acad. of Pediatrics v. Lungren (1997) 16 

Cal.4th 307, 326 (Lungren) [“even when the terms of the California Constitution 

are textually identical to those of the federal Constitution, the proper interpretation 

of the state constitutional provision is not invariably identical to the federal courts’ 

interpretation of the corresponding provision contained in the federal 

Constitution”].) What’s more, we have said the particular provision at stake here 

— article I, section 13 — affords arrestees more expansive protection than does 

the Fourth Amendment. The majority relegates our decisions to the sideline in its 

rush to adhere to what it calls the high court’s “guidance,” but in fact, treats as 
8

controlling authority. In doing so, the majority fails to maintain fidelity to our 

caselaw and Constitution.

The position the majority takes is in tension even with its own logic. There 

is simply no good reason to believe that the order in which this court decides an 

issue vis-à-vis the high court should determine the outcome of our deliberation, or 

that we should read our prior cases as supporting some kind of ersatz presumption 

that we should ration as much as possible the discussion of state constitutional 

rights. The framing is inconsistent with the majority’s purported “reaffirm[ation]” 

of “long-established principles” that the rights guaranteed by our state Constitution 

“are in no way ‘dependent on those guaranteed by the United States 

Constitution.’ ” (Maj. opn., ante, at p. 30.) If the rights of our citizens are not 

dependent on the federal Constitution, then our analytical route for determining 

what those rights are should not take a different course simply because the United 

States Supreme Court issued an opinion before we did.

In replying to our criticism, the majority seeks its answer to the awkward 

question of why temporal order matters so much for its analysis in a rationale that 

it describes as “straightforward” — so straightforward, in fact, it may be captured 

in two words: “stare decisis.” (Maj. opn., ante, at p. 34, fn. 9.) When we have 

not spoken, says the majority, the weight of stare decisis does not exist to 

counterbalance against the “force of the contrary United States Supreme Court 

decision.” (Ibid.) This contention is doubly flawed. First, by positing that 

California courts have not spoken, the majority wrongly implies that nothing in 

our own precedent weighs as much as even a single federal court decision that’s 

not binding on us. Yet as detailed in this section, any reasonable reading of our 

past decisions reveals them to be enormously relevant to the question before us.

Second, how the majority decides to frame its inquiry is just as much a 

problem. By asking whether we may grant our own courts a permission slip to 
9

“depart” from a United States Supreme Court decision addressing a matter that is 

no more than partially similar to the case before us, the majority has done more 

than to adjust the weight on the state side of the jurisprudential scale relative to the 

federal side. It’s dispensing with the scale altogether. Instead of weighing the 

relative merits of the issue at hand according to our independent responsibility to 

construe our Constitution, the majority appears to deploy words like “depart” and 

“guidance” to embrace the view that we should presumptively comply with a 

United States Supreme Court opinion that does not even address the precise 

question before us. In this new analysis, our own authorities are emaciated in 

importance by being read narrowly, such that booking searches are presumed to be 

so categorically distinct from field searches that nothing meaningful can be 

gleaned for this case from decisions involving the latter. Meanwhile, a far-broader 

reading and presumption of validity is reserved for a non-binding United States 

Supreme Court decision — even though the decision is interpreting a different 

Constitution, and a different DNA collection scheme that does not come close to 

applying to all felony arrestees. This position implies that the United States 

Supreme Court can dictate what we do whenever we interpret an issue under the 

California Constitution, despite our prior decisions supporting a contrary answer, 

so long as we have not previously resolved precisely the same question. 

Remarkably, this position removes both the “stare” and “decisis” from “stare 

decisis” –– inverting the concept to justify departures from California decisions 

governing the scope of state privacy protection.

Those decisions underscore how adopting King’s approach would be at 

odds with article I, section 1 of California’s Constitution. And it would be at odds 

with our case law construing that provision and emphasizing the importance of 

informational and dignitary privacy interests under California law. In contrast to 

its federal counterpart, the California Constitution contains an express statement 
10

about the importance of personal privacy: “All people are by nature free and 

independent and have inalienable rights. Among these are enjoying and defending 

life and liberty, acquiring, possessing, and protecting property, and pursuing and 

obtaining safety, happiness, and privacy.” (Cal. Const., art. I § 1.) True: we have 

previously found that article I, section 1 does not by itself confer a privacy right 

substantively different from what article I, section 13 purports to protect. (People 

v. Crowson (1983) 33 Cal.3d 623, 629.) But neither have we held that this 

language is devoid of meaning when considered together with that of article I, 

section 13.

The reason we have not so held is because the most sensible reading of the 

California Constitution would assign both importance and meaning to its mention 

of personal privacy. Even if the language in article I does not create a separate 

class of privacy rights, at a minimum this reference underscores how certain 

infringements of personal privacy deserve heightened scrutiny in our search and 

seizure analysis relative to what the federal analysis requires. Our cases 

construing article I, section 1 in relation to the federal Constitution reinforce this 

conclusion. What we have emphasized is that the scope of the state constitutional 

right of privacy is broader than the concept of privacy the federal courts have 

identified — and that this distinction may at times lead us to provide greater 

protection for individuals’ privacy rights than the federal courts might. (Lungren, 

supra, 16 Cal.4th at pp. 326–327 [“past California cases establish that, in many 

contexts, the scope and application of the state constitutional right of privacy is 

broader and more protective of privacy than the federal constitutional right of 

privacy as interpreted by the federal courts”].)

Our cases have described the “core value” of article I, section 1 as 

protecting so-called “informational privacy,” meaning the privacy interest in 

sensitive and confidential personal information. (Hill v. National Collegiate 
11

Athletic Assn. (1994) 7 Cal.4th 1, 35–36 (Hill); Lungren, supra, 16 Cal.4th at p. 

406.) We have found that article I, section 1 grew out of the electorate’s fears of 

“increased surveillance and data collection activity in contemporary society” 

(White, supra, 13 Cal.3d at p. 774), and was intended to address the potential 

collection, stockpiling, and use of individuals’ most personal information in an 

arbitrary and unjustified fashion. (Ballot Pamp., Gen. Elec. (Nov. 7, 1972) 

argument in favor of Prop. 11, p. 27 (Article I, section 1 Ballot Pamp.) [privacy 

initiative targeted the “collecting and stockpiling [of] unnecessary information . . . 

and misusing information gathered for one purpose in order to serve other 

purposes or to embarrass”].) Article I, section 1 provides special protection for 

what we have deemed “autonomy,” or dignitary, privacy, which we have 

described as protecting the interest in making “personal decisions or conducting 

personal activities without observation, intrusion, or interference.” (Hill, supra, 7 

Cal.4th at p. 35.) We have found dignitary privacy to embrace a person’s interest 

in retaining control over his or her own body and “bodily integrity.” (Lungren, 

supra, 16 Cal.4th at pp. 326–327, 337.) Finally, it has not escaped our attention 

that article I, section 1 addresses the unique harms that can occur when the 

government intrudes on a person’s privacy. The proponents of the provision 

warned of the possibility of the government assembling “personal information” 

and referred specifically to the possibility that private information could be 

permanently stored in government records. (Article I, section 1 Ballot Pamp., 

supra, at p. 26 [“Government agencies seem to be competing to compile the most 

extensive sets of dossiers of American citizens. Computerization of records makes 

it possible to create ‘cradle-to-grave’ profiles of every American.”].)

Given the nature of these concerns, the machinery of the DNA Act appears 

to epitomize the sort of intrusion relevant under article I, section 1. The collection 

of DNA — whether it is via cheek swab or any of the other collection processes 
12

the Act permits (see Pen. Code, § 298.1, subd. (b) [permitting the use of 

reasonable force to collect DNA database samples]) — violates the subject’s 

bodily integrity. (See Hill, supra, 7 Cal.4th at pp. 40–41 [finding that the 

collection of a urine sample “impacts legally protected privacy interests”].) And 

the use of that sample to create and store a DNA profile gives the government 

long-term access to the subject’s genetic code — some of the most personal 

information imaginable. (Id. at p. 41 [“ ‘A person’s medical profile [as revealed 

by the collection and analysis of urine] is an area of privacy infinitely more 

intimate, more personal in quality and nature than many areas already judicially 

recognized and protected.’ ”]; Birchfield v. North Dakota (2016) 579 U.S. ___, 

___–___ [136 S.Ct. 2160, 2177] (Birchfield) [noting that DNA collection and 

analysis “put into the possession of law enforcement authorities a sample from 

which a wealth of additional, highly personal information could potentially be 

obtained”].) The DNA Act’s processes thus seem to fall close to the heart of 

article I, section 1’s scope. Consequently, it is vital to consider article I, section 1 

in our independent analysis of the constitutionality of the DNA Act under our state 

charter.

Ultimately, the majority’s approach to constitutional federalism fails to do 

justice to the importance of state constitutional rights. The majority does not 

appear to reject the well-settled principle that “[t]he construction of a provision of 

the California Constitution remains a matter of California law regardless of the 

narrower manner in which decisions of the United States Supreme Court may 

interpret provisions of the federal Constitution.” (People v. Pettingill (1978) 21 

Cal.3d 231, 247–248.) Yet it ironically finds that neither our constitution nor case 

law offers “adequate reasons” for us to take a fresh look at this case beyond what 

it takes to be the long shadow cast by King. (Maj. opn., ante, at p. 34.)
13

The path we are bound to follow is a different one. Instead of relying 

primarily on King to yield a tidy solution in this case, we owe it to the citizens of 

our state to perform an independent analysis to determine whether “ ‘the particular 

governmental invasion of a citizen’s personal security’ ” is reasonable under the 

circumstances of this case. (In re Tony C. (1978) 21 Cal.3d 888, 892.) Our 

analysis shows the intrusion to be unreasonable.

II.

Once we assign proper weight and meaning to the California Constitution, 

we can turn to the ultimate question in any case arising under article I, section 13: 

whether the search or seizure in question is reasonable. (Ingersoll v. 

Palmer (1987) 43 Cal.3d 1321, 1329 (Ingersoll); see also Brisendine, supra, 13 

Cal.3d at p. 536.) At issue here is the compelled physical production of a 

biological sample from someone who has not been convicted. Whether this 

particular search satisfies the reasonableness standard is judged by balancing its 

intrusion on the individual’s reasonable expectations of privacy against its 

promotion of legitimate government interests. (People v. Robinson (2010) 47 

Cal.4th 1104, 1120 (Robinson).) In this section, we examine the interests the 

government says are served by the DNA Act. Ultimately, such interests either 

ring hollow or prove insufficient to justify suspicionless, warrantless searches of 

the type allowed by the Act. 

As a threshold matter, it is questionable whether the DNA Act genuinely 

furthers many of the interests the government identifies. The government must 

create a DNA profile and compare it against existing profiles to obtain any of the 

“identification” information it needs. The State informs us here that it takes 

“around 30 days on average” to generate an identification profile from an 

arrestee’s DNA sample. Yet in seeking to justify the collection of DNA, the 

government points to functions — verifying identity, making bail decisions, and 
14

so forth — that it must perform near to the time an arrestee is booked and 

processed into jail, or shortly thereafter. In fact, the Attorney General 

acknowledges that “in many cases” an arrestee is released from custody before the 

State obtains his or her DNA profile. So, it seems unlikely that DNA collection 

actually furthers any of these identification interests; the government even 

acknowledges that it uses fingerprints, not DNA, to aid most of these decisions 

and that fingerprinting “plays the lead role in confirming who a person is.” Law 

enforcement officials are able to collect fingerprints promptly, compare them 

against an electronic database composed of prints from various sources —

including former arrestees but also civil sources such as persons who have served 

or are serving in the United States military, or have been or are employed by the 

federal government — and obtain a response as to any “hits” within approximately 

27 minutes. (FBI, Integrated Automated Fingerprint Identification System 

archived at 

<https://web.archive.org/web/20120921125141/http://www.fbi.gov/aboutus/cjis/fingerprints_biometrics/iafis/iafis/> [as of Apr. 2, 2018].) In short, it seems 

that DNA collection does little to meaningfully further the State’s asserted 

interests in establishing an arrestee’s identity and making various intake and 

processing decisions.

The majority acknowledges that there may be a delay of “weeks or months” 

between the initial booking and when a DNA profile is generated. (Maj. opn., 

ante, at pp. 36–37.) Nonetheless, it asserts that governmental interest in 

identifying arrestees is unaffected because information from an DNA profile —

late as it may be in coming in — can still “influence the jailer’s decision about 

where to house the arrestee,” or lead to a “revisit [of] an initial determination to 

release the arrestee” or “impos[ition] [of] new release conditions.” (Id. at p. 36.) 

The government did not advance interests so far removed from the time of 
15

booking in its own briefs. Tellingly, the majority has cited no source to suggest 

that jails have the capacity to rehouse felony arrestees — those arrested for 

“serious or violent” crimes (id. at p. 17) — in more secured places simply because 

they are now suspected of a second crime, as revealed by a “hit” against their 

DNA profile. We also question the premise that a reassessment of the initial 

release decision is in itself a compelling governmental interest, especially when 

we have little idea — as neither the government nor the majority has told us —

how often such a circumstance presents itself. We are asked to tip the scale in 

favor of the government without knowing how many felony arrestees are released; 

released with less than a full set of conditions imposed; or face a revisit of the 

initial release determination when their DNA generates a hit (as opposed to an 

arrest on the new crime). To expect that we would simply look past this absence 

of justification is to take the idea of a blindfold on the judicial process far too 

literally. (See Riley, supra, 134 S.Ct. at p. 2485 [finding an asserted government 

interest inadequate when “neither the United States nor California offers evidence 

to suggest that their concerns are based on actual experience”].)

Instead of the supposed interests tied to the initial arrest and booking, the 

most plausible justification for the present DNA collection is that it aids in 

identifying arrestees who may have been perpetrators of unsolved crimes. 

Proposition 69 was titled the “DNA Fingerprint, Unsolved Crime and Innocence 

Protection Act.” Ballot arguments in favor of the initiative relied heavily on the 

promise that DNA collection would increase the likelihood of solving cold cases 

and help police investigations. (See Ballot Pamp., Gen. Elec. (Nov. 2, 2004) 

argument in favor of Prop. 69.) For instance, those arguments referenced a 

number of murders that had been solved based in part on DNA evidence and 

promised that the DNA Act would help “solve crime, free those wrongfully 

accused, and stop serial killers.” (Ballot Pamp., Gen. Elec. (Nov. 2, 2004) text of 
16

Prop. 69, p. 62.) Likewise, the findings section of the proposed law declared that 

it would “solve crime[s],” “apprehend perpetrators,” expand the number of “cold 

hits and criminal investigation links,” and thereby “substantially reduce the 

number of unsolved crimes.” (Id. at p. 135.)

The Attorney General’s arguments in defense of the DNA Act suffer 

essentially the same malady. Most of the government’s justifications for the DNA 

Act that the Attorney General emphasizes — even those couched in terms of 

“identity” — pivot on generalized concerns about crime-solving. For instance, the 

Attorney General argues that since the DNA Act was enacted, the State has 

recorded more than 31,000 “hits” between identification profiles taken from 

arrestees and DNA stored from unsolved cases. The government argues that DNA 

identification yields “substantial benefits” for law enforcement, and illustrates the 

point by referencing cold cases that were solved after many years when DNA 

evidence was collected and linked to the unsolved matter. The government also 

argues that the “benefits” from the DNA Act include deterrence, insofar as a 

potential criminal is aware that the Act enhances law enforcement’s capacity to 

identify the perpetrators of crimes and prosecute them.

Crime-solving through identification of such perpetrators can certainly 

constitute a legitimate government interest. (See Robinson, supra, 47 Cal.4th at 

pp. 1121–1122.) At issue here is not whether the government can have a 

legitimate interest in solving crimes, but whether such a generalized interest ––

without more –– is sufficient to overcome the privacy rights of individuals subject 

to arrest. We have made clear that where the primary purpose of a search or 

seizure is to detect crime or gather evidence of crime, the government must 

ordinarily have individualized suspicion that the person to be searched has 

committed a specific offense for the search or seizure to be valid. (See Ingersoll, 

supra, 43 Cal.3d at pp. 1327–1328.) Such individualized suspicion is utterly 
17

missing when the government searches all arrestees for evidence that, at some

unknown time in some unknown place under unknown circumstances, they might 

have committed some other unidentified crime.

The risk in simply embracing generalized crime-solving as sufficient 

justification for compelled collection of a DNA sample from someone who has 

merely been arrested is that such a move may be understood to justify searches 

and seizures of people and places without any particularized suspicion. The 

detection of legal wrongdoing is perhaps the preeminent justification for all 

policing activity, making such a generalized interest virtually always loom in the 

background when any law enforcement search is attempted. To allow such an 

interest to tip the balance and allow for, first, an intrusion into the body; second, 

analysis of the information seized therefrom; and, finally, potentially indefinite 

retention of the results (regardless of the outcome of the initial arrest that served as 

justification for the search), is to permit such an interest to become not only 

omnipresent but also omnipotent. Having trumped a person’s interest in what is 

often the most jealously guarded fount of information –– and having done so on 

the basis of nothing more than that the mere fact a person was subject to a felony 

arrest –– the diffuse governmental interest in generalized crime-solving will 

almost always overwhelm any offsetting consideration. Which is why we must be 

especially vigilant before embracing the government’s argument. (See King, 

supra, 569 U.S. at p. 482 (dis. opn of Scalia, J.) [acknowledging that “the 

construction of [] a genetic panopticon,” culled from “the taking of DNA samples 

from anyone who flies on an airplane,” “applies for a driver’s license,” or “attends 

a public school” would have the “beneficial effect of solving more crimes” but

denouncing the idea that this was enough to override “the charter of our 

liberties”].)
18

 So it is beyond question that the government may deploy reasonable 

techniques to solve crime –– so long as those techniques do not effect a search or a 

seizure without individualized suspicion. Yet the fact that the class of persons 

subject to the DNA Act is limited to arrestees, rather than all citizens, does not 

give rise to the necessary threshold of suspicion to conduct a generalized search 

for incriminating information, nor does it change the usual presumption that 

searches are unlawful absent a warrant. Moreover, the warrant exception for a 

search incident to arrest is limited. It allows only for searches to uncover evidence 

of the crime that gave rise to the arrest itself or weapons that might be used to 

injure an arresting officer or accomplish an escape. (Brisendine, supra, 13 Cal.3d 

at p. 539.) We made this rule clear in Brisendine, and have continued to adhere to 

it in subsequent cases, where we have refused to allow the fact of arrest to justify 

the warrantless search of arrestees, or their property, for items not related to one of 

these two governmental interests. (See Ruggles, supra, 39 Cal.3d at pp. 11–12 

[finding search of containers in trunk of felony arrestee’s car unconstitutional]; 

Laiwa, supra, 34 Cal.3d at pp. 727–728 [finding search of individual’s tote bag 

following arrest unconstitutional].)

Under this authority, even full custodial arrest, booking, and incarceration 

will not authorize law enforcement to conduct an exploratory search of an arrestee 

in the hope of discovering evidence of another, possibly more serious crime. (See 

Laiwa, supra, 34 Cal.3d at pp. 727–728.) Rather, booking an arrestee into custody 

only permits a further search necessary to serve the government’s administrative 

needs. (Id. at p. 726; People v. Macabeo (2016) 1 Cal.5th 1206, 1214.) In 

contrast to such searches, the DNA collection at issue would effect a search and 

seizure to uncover evidence of any and all illicit activities — those committed in 

the past as well as those that might be committed in the future, none of which the 

State has justifiable reason to suspect that the arrestee has done. To allow such an 
19

intrusion would contravene our precedent and dramatically expand the recognized 

exceptions to the warrant requirement. 

It is true that DNA sampling will “provide accurate and reliable 

identification of criminal offenders” and that “DNA samples, like fingerprints, 

may also be used to establish a suspect’s involvement in crimes.” (Maj. opn., 

ante, at p. 35.) What does not follow from this observation is that the 

constitutionality of fingerprinting renders DNA sampling constitutional. To treat 

fingerprints and DNA samples as essentially similar is akin to comparing a single 

piece of fruit to a chain of supermarkets. Neither we, nor the high court, have ever 

held that the taking of fingerprints, photographs, or the like invades any 

expectation of privacy, or otherwise heightens the risks that bring article I, section 

13 or the Fourth Amendment into play.2 To the contrary, we have indicated that 

the taking of fingerprints is “standard police procedure,” rather than a search or 

seizure of an arrestee’s person. (People v. McInnis (1972) 6 Cal.3d 821, 825–826; 

see also Loder v. Municipal Court (1976) 17 Cal.3d 859, 865 (Loder).)3 

 

2 None of the cases the Attorney General cites is to the contrary. The 

Attorney General cites United States v. Mitchell (3d Cir. 2011) 652 F.3d 387, 411, 

for the proposition that the collecting of fingerprints has met with “universal 

approbation” from the courts. But in Mitchell, the court embraced the DNAfingerprinting analogy in addressing a challenge to the federal DNA collection 

statute; the court did not consider a Fourth Amendment challenge to the practice 

of fingerprinting. The same is true of Doe v. Sheriff of DuPage County (7th Cir. 

1997) 128 F.3d 586, which did not consider a Fourth Amendment challenge to 

fingerprinting but instead addressed a defendant’s argument that the sheriff should 

have permitted persons surrendering on warrants to post bond without being taken 

into custody. (Id. at p. 588.)

3 United States v. Kelly (2d Cir. 1932) 55 F.3d 67, 69, which the majority 

relies on here (maj. opn., ante, at pp. 36–37), likewise demonstrates only that 

fingerprinting is a commonplace means of identification — not that it is, like DNA 

collection, a search that implicates an individual’s constitutional rights.
20

Rather than finding these police processes to constitute reasonable 

invasions of an arrestee’s privacy, our precedent instead concludes that the taking 

of fingerprints or photographs does not implicate article I, section 13 at all. (See 

Loder, supra, at pp. 864–865 [arrestee’s right of privacy is not infringed by the 

taking of his fingerprints and photographs, or recording of his vital statistics].) 

The high court, likewise, has suggested that fingerprinting — and similar 

recordings of bodily characteristics that do not require an “intrusion into the body” 

— does not come within the Fourth Amendment’s scope. (See United States v. 

Dionisio (1973) 410 U.S. 1, 14–15; see also Davis v. Mississippi (1969) 394 U.S. 

721, 727 [concluding that fingerprinting “involves none of the probing into an 

individual’s private life and thoughts that marks an interrogation or search”].) In 

contrast to the collection of DNA, fingerprinting does not intrude on a person’s 

bodily autonomy, or record information that is not otherwise available to public 

view (like the image of one’s face or markings on a person’s body). (Cf. 

Robinson, supra, 47 Cal.4th at pp. 1119–1120 [characterizing intrusions necessary 

for DNA profiling as “invasions of the body” constituting searches within the 

meaning of the Fourth Amendment].) All this makes it difficult to accept the 

majority’s argument that DNA collection is tantamount to fingerprinting and 

therefore necessarily constitutional. (See State v. Medina (2014) 102 A.3d 661, 

682–683 [rejecting comparison of DNA collection to fingerprinting in holding 

Vermont’s DNA collection statute unlawful under Vermont Constitution’s 

prohibition against unreasonable searches and seizures].)

A recent United States Supreme Court decision also cuts against treating 

fingerprinting and DNA collection as equivalent. In Birchfield, supra, 136 S.Ct. at 

p. 2185, the high court held that the search incident to arrest doctrine does not 

justify the warrantless taking of a blood sample to measure blood alcohol content 
21

(BAC). To reach this conclusion, the high court weighed the privacy interests 

affected by blood tests against the government’s need for such tests. It found that 

the tests implicated significant privacy concerns — not only because of the 

intrusive nature of the tests, which involve piercing the skin, but also because a 

blood sample contains sensitive information which may be susceptible to 

substantial further analysis. (Id. at p. 2178.) The court noted that a blood test 

“places in the hands of law enforcement authorities a sample that can be preserved 

and from which it is possible to extract information beyond a simple BAC 

reading.” (Ibid.) As such, “[e]ven if the law enforcement agency is precluded 

from testing the blood for any purpose other than to measure BAC, the potential 

remains and may result in anxiety for the person tested.” (Ibid.) In contrast, 

“breath tests are capable of revealing only one bit of information, the amount of 

alcohol in the subject’s breath.” (Id. at p. 2177.)

Breath tests are like fingerprints, and DNA samples, like blood. 

Fingerprints reveal only limited bytes of information. Not so with DNA. DNA 

samples contain a wealth of genetic information, which would make an individual 

nervous about possible violations of his or her privacy as long as the information 

remains in the state’s possession. The Supreme Court had no trouble 

distinguishing between breath and blood tests, finding one constitutional and the 

other not. We likewise would do well not to ignore the distinction between DNA 

analysis and fingerprinting.

Nor should we ignore that fingerprinting remains available to advance 

many of the very interests that allegedly support the DNA Act. The existence of 

fingerprints as a fast and accurate means to ascertain the identity of an arrestee 
22

further diminishes the state’s interest in identifying individuals by their DNA. 

Undoubtedly there are some instances where a DNA sample may help to solve a 

cold case but a set of fingerprints would not. (See maj. opn., ante, at p. 37 

[identifying Robinson as one such case].) Nonetheless, just as the “reasonableness 

[of blood tests] must be judged in light of the availability of the less invasive 

alternative of a breath test” (Birchfield, supra, 136 S.Ct. at p. 2184), DNA tests 

must be judged in light of the availability of the less invasive alternative of 

fingerprints — even if the alternative is not a perfect substitute. The high court in 

Birchfield recognized various advantages that a blood test offers over a breath test 

(id. at pp. 2184–2185), and yet did not find that enough for the former to pass 

constitutional muster. Instead, because “breath tests are significantly less intrusive 

than blood tests and in most cases amply serve law enforcement interests,” the 

court concluded that there was no sufficiently compelling justification for 

warrantless blood tests. (Id. at p. 2185, italics added.) The same conclusion 

follows with the DNA tests at issue here.

III.

Even as the DNA Act falls short of legitimately advancing the interests the 

government asserts, its requirements constitute a major intrusion into the privacy 

of all the people subject to its procedures. Focusing solely on the physical 

collection of DNA samples understates the invasion at issue in this case. The 

DNA Act is unusual in that it effects more than one intrusion into a person’s 

privacy and autonomy: the intrusion occurs not only when the arrestee is 

physically subjected to the DNA collection, but also when his biological sample is 

processed to create a DNA profile, stored indefinitely in federal and state 

databases, and potentially analyzed in the future when conducting comparisons 
23

against newly obtained samples. This continuing intrusion makes the DNA Act’s 

search unlike other ordinary searches and seizures, as the potential infringement 

on an individual’s privacy is ongoing.

The second intrusion — the processing, storage, and comparison of an 

individual’s DNA sample — is a far more significant invasion of an arrestee’s 

privacy. That one’s DNA reveals much of a person’s most private, closely 

guarded information is difficult to dispute. A DNA sample stored by the state 

contains an arrestee’s entire genetic code — information that has the capacity to 

reveal the individual’s race, biological sex, ethnic background, familial 

relationships, behavioral characteristics, health status, genetic diseases, predisposition to certain traits, and even the propensity to engage in violent or 

criminal behavior. (See United States v. Kriesel (9th Cir. 2013) 720 F.3d 1137, 

1149, 1159–1160 [citing Krimsky & Simoncelli, Genetic Justice (2010) at pp. 

231–232]; see also Abrams & Garrett, DNA and Distrust (2016) 91 Notre Dame 

L.Rev. 757, 763.) The DNA profile maintained in state and federal databases thus 

has the potential to reveal vast amounts of personal information about those 

individuals, and to be used in ways starkly different relative to what justified the 

scheme. (Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth 

Amendment (1995) 74 Tex. L.Rev. 49, 95–96.) One can scarcely imagine personal 

information that falls more closely to the core of the “realm of guaranteed 

privacy” that constitutional protections against searches and seizures aim to 

protect. (Kyllo, supra, 533 U.S. at p. 34; see also Ruggles, supra, 39 Cal.3d at pp. 

9–10 [article I, section 13 considers whether a search interferes with a person’s 

reasonable expectations of privacy]; United States v. Amerson (2d Cir. 2007) 483 

F.3d 73, 85 [describing the “vast amount of sensitive information that can be 

mined from a person’s DNA”].)
24

Given the extent of the interests involved, it should not be taken for granted 

that the State’s current practices or statutory provisions prohibiting misuse will 

mitigate the interference with an arrestee’s expectation of privacy. (Cf. maj. opn., 

ante, at p. 38.) For one, it is not necessarily the actual use of an individual’s DNA 

that invades her reasonable expectations of privacy. (See Birchfield, supra, 136 

S.Ct. at p. 2178 [“Even if the law enforcement agency is precluded from testing 

the blood for any purpose other than to measure BAC, the potential remains and 

may result in anxiety for the person tested.”].) Here, a privacy intrusion occurs 

from the mere fact of the government’s storage of an arrestee’s DNA, regardless 

of the way that the government uses it. That the government retains access to a 

person’s most private, sensitive genetic information — and the risks implicit in 

such access — constitutes a violation in itself, even if the government does not 

presently wring from the DNA all the flows of information to be found there. 

(Ibid.; see also United States v. Jones, 565 U.S. 400, 415–416 (conc. opn. of 

Sotomayor, J.) [finding continuous GPS monitoring to be an unconstitutional 

search in part because of the risk that the government “[could] store such records 

and efficiently mine them for information years into the future”].)

 Moreover, it is precisely this kind of intrusion that justifies California’s 

heightened privacy protections in the first place. As discussed above, the purpose 

of the constitutional grant of privacy is to protect citizens from governmental 

surveillance and other forms of information gathering. The DNA Act permits the 

government to store DNA with the potential to reveal information of an 

indisputably private nature. Article I, section 13 of our state Constitution — as 

informed by the privacy clause of article I, section 1 — protects against such an 

invasion of core privacy. (See Ruggles, supra, 39 Cal.3d at pp. 9–10.)

Furthermore, that the DNA Act invades the privacy of arrestees in 

particular does not mean we can ignore the resulting privacy invasion — or the 
25

risks associated with it. We have rejected the premise that an individual placed 

under arrest — even custodial arrest — lacks a significant, constitutionally 

protected interest in the privacy of her person. We have done so for good reason: 

valid justification to arrest an individual for a specific offense does not 

consequently extinguish all of her privacy rights, nor does it imply –– without 

more –– that there is a basis to suspect her of involvement in any other kind of 

felony. (Brisendine, supra, 13 Cal.3d at p. 556.) In contrast, convicted felons

“ ‘retain no constitutional privacy interest against their correct identification.’ ” 

(Robinson, supra, 47 Cal.4th at p. 1121.) But we have never held, as the 

government argues, that individuals lawfully placed under custodial arrest lack a 

constitutionally protected interest in their genetic identity.

Nor can we consider the privacy interests at stake in this case solely from 

the perspective of an individual who has been lawfully arrested and convicted. It 

is undisputed that Buza was arrested with probable cause and convicted of three 

felonies. But Buza declined to provide a sample of his DNA during his booking 

into jail — long before his felony convictions, and prior to a probable cause 

determination by a neutral magistrate. Whatever is the basis for a felony arrest, 

the arrestee may not be subjected to a presumption of guilt until proven innocent. 

At the time of refusal, Buza enjoyed the presumption of innocence, and the 

ultimate disposition of his felony charges was uncertain. At that moment, Buza 

had just as much a right to assert noncompliance in order to raise a challenge 

against the DNA Act as an arrestee who would eventually be acquitted of felony 

charges. Far from asserting the privacy interests of third parties, Buza challenges 

the DNA Act as it applies to himself under the circumstances of this case. (Cf.

Sabri v. United States (2004) 541 U.S. 600, 609 [disapproving of a facial 

challenge to the constitutionality of a statute]; In re Cregler (1961) 56 Cal.2d 308, 
26

313 [“one will not be heard to attack a statute on grounds that are not shown to be 

applicable to himself”].)

Suppose we waited instead for another case brought by a plaintiff lawfully 

arrested for, and ultimately acquitted of, a felony charge. When this hypothetical 

plaintiff is told to submit to a DNA test upon arrest, she is presented with only two 

choices, both causing irreparable harm: (1) she could refuse the test and be 

lawfully prosecuted for (and found guilty of) a misdemeanor; or (2) she could 

submit to the test, and suffer the very harm to her privacy that she would later 

attempt to mitigate partially by seeking expungement. We may on occasion 

tolerate some degree of privacy harm and still uphold a search and seizure as 

reasonable. (See, e.g., People v. Medina (1972) 7 Cal.3d 30, 40 [“Reasonableness 

of a search may depend on the degree of invasion of privacy which occurs.” 

(italics added)].) But this case raises more serious privacy concerns, because of 

the character of the information the government seeks to obtain. (See Birchfield, 

supra, 136 S.Ct. at p. 2178; State v. Medina, supra, 102 A.3d at p. 682 [stating 

that it is “important to note that the DNA samples being seized provide a massive 

amount of unique, private information about a person that goes beyond 

identification” in finding unconstitutional a state statutory amendment which had 

permitted DNA collection from all felony arraignees].) By declining to reach the 

issue here, we force a potential future plaintiff to suffer irreversible adverse 

consequences, either by penal sanction or harm to genetic informational privacy. 

This seems a substantial burden to impose upon an individual seeking to challenge 

the infirmities of the retention provisions, particularly where, based on the facts of 

this case, the majority already implicitly recognizes that there are likely 

constitutional defects in the statutory provisions regarding the government’s 

retention of genetic information. (Maj. opn., ante, at p. 25 [stating that “we must 
27

leave for another day” the question of whether automatic expungement is 

constitutionally required for “the wrongly arrested or exonerated”].)

That Buza was ultimately arraigned and convicted is therefore irrelevant to 

our analysis. (Cf. maj. opn., ante, at pp. 2, 41–44.) We must consider Buza’s 

claim in light of how he was situated when that claim accrued — when he was 

merely “[a]n arrestee whose arrest has not even been subjected to a judicial 

determination of probable cause,” and so held privacy interests “closest on the 

spectrum of privacy rights to an ordinary citizen.” (People v. Buza (2014) 231 

Cal.App.4th 1446, 1488; see People v. Triggs (1973) 8 Cal.3d 884, 893 (Triggs) 

[“In seeking to honor reasonable expectations of privacy through our 

application of search and seizure law, we must consider the expectations of the 

innocent as well as the guilty.”].) The majority makes much of the fact that Buza 

made incriminating statements when he was arrested, which it takes to mean that 

he knew his arrest was supported by probable cause. (Maj. opn, ante, at pp. 20 & 

fn. 4, 42.) Why exactly an individual arrestee’s subjective belief about probable 

cause should factor into the analysis is far from clear, particularly since we 

consider probable cause objectively, from the point of view of a reasonable person 

in possession of all the facts known to the arresting officer. (E.g., Whren v. United 

States (1996) 517 U.S. 806, 812–813.) Moreover, simply because Buza knew the 

authorities were “going to regard [his setting fire to a police car] as an illegal act” 

does not mean that he forfeited all reasonable expectations of privacy. 

Irrespective of Buza’s state of mind when he was arrested, his refusal to allow 

collection of his DNA sample at booking spoke volumes in manifesting his 

subjective expectation of privacy. The question facing us here is whether that 

expectation is reasonable. Because of the veil of ignorance that prevents society 

from knowing for certain whether an arrested individual is in fact guilty of the 

offense that is the basis for the arrest, Buza was in every meaningful respect 
28

indistinguishable from an arrestee who is later found to be innocent. So we 

explore the reasonableness of Buza’s privacy expectation from that perspective.

Unlike the Maryland statute scrutinized in King, the DNA Act does not 

require that a lawful arrest have occurred before DNA collection, as it permits the 

retrieval and processing of a DNA sample before a magistrate or other judicial 

officer has determined that the arrest was supported by sufficient probable cause. 

This aspect of the DNA Act vastly expands the number of individuals subject to its 

dragnet. As Justice Liu points out, almost one in five felony arrestees are released 

prior to a judicial determination of probable cause. Yet all of these individuals 

must allow their DNA to be collected and retained by the state (for at least 180 

days) under threat of criminal sanction. (Pen. Code, § 299, subd. (c)(2)(D).) Even 

more invidiously, the fact that the state may compel a DNA sample from even 

those wrongfully arrested provides the perverse incentive for law enforcement to 

engage in pretextual arrests as a means to obtain a person’s DNA and wherefore 

uncover evidence of crimes.

The DNA Act’s lack of an automatic expungement provision exacerbates 

such concerns. Again, unlike the Maryland statute, the Act does not require the 

destruction of the DNA sample and removal of any resulting profile from state and 

federal databases if the individual at issue is never convicted of a felony. Instead, 

the DNA Act requires a discharged arrestee to initiate expungement proceedings 

and navigate the resulting process himself. Although the Department of Justice 

assures us that the “vast majority of requests have resulted in expungement,” the 

Attorney General does not provide — and the record does not elsewhere contain 

— any information about how often eligible individuals initiate expungement 

proceedings in the first place. The absence of automatic expungement 

proceedings, and the employment of a process that requires the arrestee to initiate 

expungement and provide required documentation, heightens the possibility that 
29

the State will retain possession of DNA profiles for individuals who were never 

convicted of qualifying felonies, who may never have been charged with a felony 

in the first place, or who may not have been lawfully arrested at all.

Ironically, the interests advanced by the Attorney General on behalf of the 

state — i.e., generalized crime solving, proper housing of arrestees within the jails, 

and decision-making about pretrial release — are likely to be quite well-served 

even if the statutory scheme avoided its present constitutional defects. Indeed, the 

concerns about inadequate expungement measures and pretextual or abusive 

arrests could be alleviated by provisional amendments to the DNA Act already 

enacted by the Legislature. Under the version of the Act that will become 

operative if we affirm the appellate court, a jail official is not to transmit a DNA 

sample to the Department of Justice until there has been a felony arrest warrant 

signed by a magistrate, a grand jury indictment issued, or a judicial determination 

of probable cause for the arrest. (Pen. Code, § 298, subd. (a)(1)(A).) Waiting for 

a neutral determination of probable cause would add, at most, 48 hours to the 30 

days needed on average to process a DNA sample. (See County of Riverside v. 

McLaughlin (1991) 500 U.S. 44, 56.) In view of the delays already associated 

with DNA processing, postponing the process until a detached and neutral 

magistrate has found probable cause would diminish none of the state’s interests 

furthered by the DNA Act, since the state would be as able to “identify” arrestees 

after a 32-day waiting period as it would after a 30-day period. The amendment, 

however, would significantly cut down on the number of people whose privacy is 

invaded due to the analysis, storage, and comparison of their DNA samples.

Nowhere does the majority seem to reject the merits of that approach. (See 

maj. opn., ante, at pp. 21–22.) Instead, it argues that since DNA processing is so 

slow, processing of the arrestees’ samples in practice — regardless of what the law 

permits — usually does not take place until judicial probable cause has been made 
30

anyway. (Id. at p. 22.) The slow operation of existing technology and institutional 

practices thus become features supporting the constitutionality of the Act. As odd 

as this argument is, its force is sapped further still by the Act’s blanket permission 

for the processing of DNA samples even if a magistrate finds that the arrest was 

without probable cause. (See Pen. Code, § 298 [requiring jail officials to 

“promptly” forward biological samples to the Department of Justice without 

providing any exception for those wrongfully arrested].) The burden remains on 

the individual — even if wrongfully arrested or later exonerated — to seek 

expungement. But were we to strike down the Act, automatic expungement would 

become law. (See Pen. Code, § 299 [conditional provision to the Act requiring 

automatic expungement of DNA profiles from databank when the arrests do not 

lead to valid convictions].) In contrast, the existing statute creates a default 

regime that requires DNA samples from anyone subject to a felony arrest ––

irrespective of whether they will eventually be judged guilty or whether a neutral 

magistrate finds probable cause — and leaves the state in a position to retain such 

information indefinitely unless expungement is pursued and achieved.

None of these observations implies we should strike down the DNA Act 

because we prefer its replacement on policy or prudential grounds. (Cf. maj. opn., 

ante, at p. 29, fn. 7.) Instead we emphasize what remains obvious even if 

downplayed by the majority: the Legislature has approved a law that 

accomplishes much of the Government’s interests while alleviating the 

constitutional problem.

While the DNA Act is an initiative entitled to a presumption of validity, the 

searches it permits — and in fact, requires law enforcement to carry out — occur 

without a warrant or probable cause. If those searches are to be upheld, it is the 

State’s burden to persuade us that they fall within one of the recognized 

exceptions to the warrant requirement, or that they are otherwise reasonable. 
31

While “mere doubt” about the DNA Act’s invalidity is not reason enough to strike 

it down (Calfarm Insurance Co. v. Deukmejian (1989) 48 Cal.3d 805, 814 

(Calfarm)), we must nevertheless require the State to justify the searches the Act 

accomplishes. In this case, the State has not carried its burden to show the 

reasonableness of its searches when balanced against the interference with 

individual privacy. So provisions of the DNA Act authorizing such unreasonable 

searches must be struck down.

Insofar as the majority would lean on majoritarian impulses to imply that 

something more is required because the Act is an initiative passed by voters (see 

maj. opn., ante, at pp. 22–23, 34, 44), we note that there is no formal distinction in 

our role in evaluating initiatives versus legislation enacted by representative 

political institutions. (Calfarm, supra, 48 Cal.3d at pp. 814–815 [evaluating an 

initiative “ ‘in the light of established constitutional standards’ ” and finding it 

unconstitutional].) The Constitution applies both, and equally, to legislators and 

the general public. The majority cannot mean to suggest otherwise.

In the final analysis, arrestees do not have such diminished expectation of 

privacy as to permit the State to retain their DNA profile and conduct repeated 

searches of it. As such, when weighed against the State’s generalized interest in 

identifying arrestees and solving crimes, an arrestee’s reasonable privacy interest 

in his or her genetic information — uniquely protected under the California 

Constitution — must win. (Triggs, supra, 8 Cal.3d at p. 892 [“ ‘important as 

efficient law enforcement may be, it is more important that the right of privacy 

guaranteed by these constitutional provisions be respected’ ”].)
32

IV.

The DNA Act unlawfully invades people’s reasonable expectation of 

privacy in their personal genetic information. Any diminished expectation of 

privacy arrestees may or may not have in their genetic code does not justify an 

intrusion of this magnitude. The government’s asserted interest in identifying 

individuals in its custody and solving crimes may prove important in justifying a 

variety of practices. But it does not countenance this intrusion, as the 

government’s rationale for the DNA Act is neither borne out by the Act’s 

implementation nor consistent with our precedent’s restrictions on suspicionless 

searches. This makes the DNA Act unconstitutional under our state charter as 

applied to felony arrestees — individuals, like Buza, who are not yet known to be 

lawfully arrested, much less found guilty. Far from invalidating the work of the 

California electorate, striking down the Act would vindicate our core 

constitutional values, which recognize that our citizens have the “inalienable 

rights” to be free of arbitrary governmental intrusion and to enjoy “safety, 

happiness, and privacy.” (Cal. Const., art. I, §§ 1, 13.)

With respect, I dissent.

CUÉLLAR, J.

WE CONCUR:

LIU, J.

PERLUSS, J.*

 

* Presiding Justice of the Court of Appeal, Second Appellate District, 

Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Buza

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 231 Cal.App.4th 1446

Rehearing Granted

__________________________________________________________________________________

Opinion No. S223698

Date Filed: April 2, 2018

__________________________________________________________________________________

Court: Superior

County: San Francisco

Judge: Carol Yaggy

__________________________________________________________________________________

Counsel:

J. Bradley O’Connell and Kathryn Seligman, under appointments by the Supreme Court; and Janice 

Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael T. Risher; Joseph R. Grodin; Paul Hastings, Peter C. Meier, Eric A. Long and Jamie L. Williams 

for American Civil Liberties Union Foundation of Northern California as Amicus Curiae on behalf of 

Defendant and Appellant.

Hanni Fakhoury, Jennifer Lynch and Lee Tien for Electronic Frontier Foundation as Amicus Curiae on 

behalf of Defendant and Appellant.

Linda F. Robertson and Jennifer Friedman for California Public Defenders Association, California 

Attorneys for Criminal Justice and Los Angeles County Public Defender as Amici Curiae on behalf of 

Defendant and Appellant.

Daniel J. Broderick, David Porter and Rachelle D. Barbour for Federal Public Defender of the Eastern 

District of California and National Association of Criminal Defense Lawyers as Amici Curiae on behalf of 

Defendant and Appellant.

Edmund G. Brown Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State 

Solicitor General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Jeffrey M. 

Laurence, Assistant Attorney General, Steven T. Oetting and Michael J. Mongan, Deputy State Solicitors 

General, Max Carter-Oberstone, Associate Deputy State Solicitor General, Joyce Blair, Stan Helfman and 

Enid A Camps, Deputy Attorneys General, for Plaintiff and Respondent.

Fulbright & Jarowski, Norton Rose Fulbright US, Eric A. Herzog, Tillman James Breckenridge and 

Jonathan S. Franklin for DNA Saves as Amicus Curiae on behalf of Plaintiff and Respondent.

Steve Cooley and Jackie Lacey, District Attorneys (Los Angeles), Irene Wakabayashi, Steven Katz, Phyllis 

C. Asayama and Roberta Schwartz, Deputy District Attorneys, for Los Angeles County District Attorney as 

Amicus Curiae on behalf of Plaintiff and Respondent.
Page 2 – S0223698 – counsel continued

Counsel:

Jan Scully, District Attorney (Sacramento), Anne Marie Schubert, Deputy District Attorney; W. Scott 

Thorpe, Mark Zahner and Albert C. Locher for California District Attorneys Association as Amicus Curiae 

on behalf of Plaintiff and Respondent.

Jones & Mayer, Martin J. Mayer, James Touchstone and Deborah Pernice-Knefel for California State 

Sheriffs’ Association, California Police Chiefs’ Association and California Peace Officers’ Association as 

Amici Curiae on behalf of Plaintiff and Respondent.

Hill Wallack, Christopher H. Asplen; Newton Rimmel and Ronald F. Rimmel for Global Alliance for 

Rapid DNA Testing as Amicus Curiae on behalf of Plaintiff and Respondent.

Tony Rackauckas, District Attorney (Orange), Jim Tanizaki and Camille Hill, Assistant District Attorneys, 

Scott G. Scoville, Tammy Sprugeon, Andrew E. Katz, Katherine David and Nancy Hayashida, Deputy 

District Attorneys, for Orange County District Attorney as Amicus Curiae on behalf of Plaintiff and 

Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

J. Bradley O’Connell

First District Appellate Project

475 Fourteenth Street, Suite 650

Oakland, CA 94162

(415) 495-3119

Michael J. Mongan

Deputy State Solicitor General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-2548