The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010

The powers of DNA have been utilized very effectively in the criminal justice system in the 21st century. DNA is an extremely powerful tool that has become quasi-routine in the investigation of crimes worldwide, to help identify the guilty parties. This tool is equally valuable, if not more so, to exonerate the innocent defendant inadvertently caught up in the criminal justice system.In November 2004, the voters of the State of California enacted Proposition 69 (hereinafter “Prop 69”), an initiative measure. It was titled “The DNA Fingerprint, Unsolved Crime and Innocence Protection Act.” It extensively modified and renamed the existing “DNA and Forensic Identification Data Base and Data Bank Act of 1998.”Inter alia, Prop 69 initially called for extraction of DNA samples from defendants after a conviction for a felony or for a registerable sexual offense. It also applied to felony prisoners, probationers, parolees and felons in prison. Effective January 1, 2009, Prop 69 extended the requirement of DNA sample extraction to all felony arrestees.The issue of the constitutionality of felony arrestee DNA Extraction provisions has recently been raised in a few courts with mixed results. One case in particular, Friedman v. Boucher, found that the Nevada state prosecutor may have violated the Fourth Amendment and that she was not immunized from personal liability under 42 U.S.C. §1983 for her act of advising the police to extract a DNA sample from an arrestee. That decision, by a split Ninth Circuit Court of Appeals panel, could have a severe impact on California prosecutors as they are subject to the jurisdiction of the Ninth Circuit for these types of lawsuits. On the other hand, the Friedman case was subsequently distinguished in the Pool case by another Ninth Circuit District Court that held DNA extraction from an arrestee as a condition of bail release was not a Fourth Amendment violation. Oral argument of the Ninth Circuit Court appeal of this Pool decision took place on December 7, 2009 and a decision is pending. At about the same time, a separate class action lawsuit was filed in another Ninth Circuit District Court seeking to enjoin law enforcement from extracting DNA from felony arrestees under Prop 69. That injunction was denied in December 2009 by the District Court Judge who found that those extractions did not constitute Fourth Amendment violations. The uncertainty created by the mixed results of these cases and the very few other decisions nationwide on the subject leave the California prosecutor in a quandary as to how to proceed with his/her duty to enforce Prop 69 with the potential risk of being held personally liable for a Fourth Amendment violation under 42 U.S.C. §1983.This article will examine the issue of personal liability of the California state prosecutors who enforce Prop 69’s mandate in California, as well as the underlying pivotal issue of the constitutionality of Prop 69’s requirement of suspicionless DNA extraction of all felony arrestees. Section II will explain the history and present status of DNA utilization within the criminal justice system. It will also examine how the courts have previously handled the issue of the constitutionality of DNA extraction of convicted felons, probationers, and prisoners, as well as how the few courts have addressed the same issue as it applies to felony arrestees. Section III will examine the issue of personal liability and possible immunity of the California prosecutor who seeks to enforce the Prop 69 statutory mandate. Finally, Section IV will examine the very recent ongoing developments in the Ninth Circuit that could complicate the issue even further.