The US Court of Appeals for the Ninth Circuit [official] on Wednesday agreed to rehear [order, PDF] a case challenging a California law [proposition 69, PDF] requiring police to conduct buccal mouth swabs to extract DNA samples from any adult arrested or charged with a felony in California. Plaintiffs challenging the law have argued that the DNA collection is a violation of their Fourth Amendment [Cornell LII backgrounder] protections against unlawful search and seizure. A three-judge panel of the Ninth Circuit in February ruled 2-1 [decision, PDF; JURIST report] that the law did not violate the rights of arrestees, finding that the government interest in collecting and testing a DNA sample without a warrant outweighs the intrusion on an arrestee's privacy. A majority of judges for the court on Wednesday voted to have the case reheard by a full 11-judge panel, vacating the February ruling. California voters approved the DNA collection law by referendum in 2004, and the state began implementing the DNA collection in 2009.
Collection of DNA from arrestees is a controversial issue throughout the US, and courts have been split on the issue. Earlier this month, US Supreme Court Chief Justice John Roberts temporarily stayed [JURIST report] a Maryland Court of Appeals ruling that police could not collect DNA from individuals arrested for violent crimes and burglaries. The appeals court struck down [JURIST report] the DNA collection law in April, finding a violation of the arrestee's right to privacy. In January the Minnesota Supreme Court upheld a state statute requiring people convicted of crimes to submit a DNA sample, ruling that such a mandate does not violate the Fourth Amendment [JURIST report]. US Attorney General Eric Holder instructed federal prosecutors in November 2010 to use DNA evidence as much as possible [JURIST report] reversing the previous policy of the Bush administration. In May 2009, a California district court upheld the constitutionality of mandatory DNA collection [JURIST report] for all persons arrested or detained under federal authority. That same year a South Carolina law was upheld that requires convicted first degree sex offenders to submit to a DNA test [JURIST report] prior to their release.