A federal appeals court will take a second look at a California law that requires police to collect DNA from people who are arrested on suspicion of felonies, regardless of whether they are convicted.
A majority of judges on the U.S. 9th Circuit Court of Appeals voted Wednesday to reconsider a split decision by a three-judge panel that had upheld the program in February.
The court's decision to ask an 11-judge panel to consider the case was a setback for prosecutors, who have defended the DNA collection as a vital crime-fighting tool.
Once a person is swabbed, his or her DNA profile is placed in a criminal database, where it can be compared with DNA profiles obtained from evidence left at crime scenes. Among those challenging the program were three protesters who were arrested but never convicted of a crime. Two of those challengers were released without being charged.
California voters approved collecting DNA from felony arrestees in 2004, passing Proposition 69 by a wide margin. The state began taking DNA from people arrested on suspicion of felonies in 2009 but immediately faced litigation over whether the collection violated the constitutional rights of people to be free of unreasonable searches and seizures.
In his dissent in February, 9th Circuit Judge William A. Fletcher questioned the effectiveness of the program, observing that many DNA "hits" to crime scene evidence involved suspects who were eventually convicted. The state has long obtained DNA from convicted criminals, a practice courts have upheld.
Although people who are not convicted may apply to have their DNA profile removed from the criminal database, "expungement is a lengthy, uncertain, and expensive process," Fletcher wrote.
The California Supreme Court also is examining the legality of collecting genetic evidence from people before conviction, after a lower state court ruled the practice unconstitutional.
Atty. Gen.Kamala D. Harris, whose office is defending the DNA program, has said that the arrestee DNA collection has solved thousands of crimes. Her office said the potential genetic matches to crime scene evidence rose nearly 51% in the year after authorities began compiling arrestee DNA.
Most states take DNA from at least some felony suspects before conviction, but courts have been split over the constitutionality of the practice. TheU.S. Supreme Courtis considering a ruling out of Maryland that struck down that state's collection of DNA from people never convicted of a crime.