Elizabeth Haskell v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH AIDA HASKELL; 

REGINALD ENTO; JEFFREY PATRICK

LYONS, JR.; AAKASH DESAI, on behalf of themselves and others similarly situated, No. 10-15152 Plaintiffs-Appellants, v.  D.C. No. 3:09-cv-04779-CRB KAMALA D. HARRIS,* Attorney

OPINION

General of California; EVA STEINBERGER, Assistant Bureau Chief for DNA Programs, California Department of Justice, Defendants-Appellees.  Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted July 13, 2010—San Francisco, California

Submission Withdrawn June 2, 2011

Resubmitted November 1, 2011

Filed February 23, 2012

*Kamala D. Harris is substituted for her predecessor, Edmund G. Brown, as Attorney General of California, pursuant to Fed. R. App. P. 43(c)(2).

1949 1950 HASKELL v. HARRIS Before: William A. Fletcher and Milan D. Smith, Jr., Circuit Judges, and James Dale Todd, Senior District Judge.**

Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge William A. Fletcher

**The Honorable James Dale…

Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge WILLIAM A. FLETCHER.

OPINION

Plaintiffs-Appellants Elizabeth Aida Haskell, Reginald Ento, Jeffrey Patrick Lyons, Jr., and Aakash Desai (collectively, Plaintiffs) appeal the district court’s denial of their motion for a preliminary injunction to stop the enforcement of the 2004 Amendment, infra, to California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act), Cal.Penal Code § 296(a)(2)(C), which amendment requires law enforcement officers to collect DNA samples from all adults arrested for felonies. They contend that the 2004 Amendment violates their Fourth Amendment right to be free of unreasonable searches and seizures.

We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze…

dissenting:

I respectfully dissent.

In Friedman v. Boucher, 580 F.3d 847 (9th Cir.2009), we held that the taking of a DNA sample without a warrant, and without suspicion of a crime that the DNA sample would help solve, violated the plaintiffs clearly established Fourth Amendment rights. Proposition 69 requires that DNA samples be taken from all felony arrestees, with or without their consent, upon their arrest. There is no need for a warrant, and there is no need for suspicion of a crime that the DNA sample would help solve. Our decision in Friedman requires us to hold that Proposition 69 violates the Fourth Amendment.

Even if Friedman were not on the books, I would conclude that Proposition 69 is unconstitutional. My reasoning is straightforward. Fingerprints may be tak *1066 en from an arrestee in order to identify him — that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody. Hayes v. Florida, 470 U.S. 811, 814-15 , 105 S.Ct. 1643 , 84 L.Ed.2d 705 (1985); Davis v.…