Monday, December 22, 2014

Buza Reloaded: The Fourth Amendment Framework

This is the second installment of remarks on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It questions the opinion's expansive view of when "totality of the circumstances" balancing is appropriate under the Fourth Amendment

The Buza II court begins its legal analysis with the reasonableness clause of the Fourth Amendment. Omitting the clause that refers specifically to judicial warrants, the opinion tells us that "[t]he Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures' . . . ." However, the court adds that "[s]ubject only to a few specifically established and well-delineated exceptions not applicable here, warrantless searches are per se unreasonable under the Fourth Amendment." Of course, if this were literally true, the case would be over, since California had no judicial warrant to compel Buza to submit to DNA extraction, and there was no "applicable exception." (The search-incident-arrest exception only permits warrantless searches for weapons or evidence that the arrestee might reach.)

The court of appeal apparently does not believe that there is a true per-se-unreasonable-with-exceptions (PSUWE) rule. Instead, it presents the absence of a warrant as a mere burden-shifting device.The state, it says, "thus bears the burden of showing that the search at issue is reasonable and therefore constitutional. (People v. Williams (1999) 20 Cal.4th 119,127.)" This interpretation cuts the heart out of the PSUWE rule and does not flow from People v. Williams. In Williams, the California Supreme Court wrote that when moving to suppress evidence, "defendants have the burden of (1) asserting the search or seizure was without a warrant, and (2) explaining why it was unreasonable under the circumstances." 83 Cal.Rptr.2d 275, 282 (Cal. 1999) (emphasis added). It seems odd to cite the case for the opposite proposition--that the burden is on the state.

But this questionable use of precedent is a minor sin. The more disturbing aspect of Buza II's exposition of the Fourth Amendment lurks in its view that a court always can find reasonableness "by examining the totality of the circumstances," which is to say, "by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests." The U.S. Supreme Court cases cited for this open-ended approach to reasonableness do not dilute the PSUWE rule to this degree.1/

In fact, if the Buza II court's claim that every warrantless search can be saved by a finding of reasonableness under the circumstances were correct, the Supreme Court would not have had such a difficult time explaining in Maryland v. King why Maryland's pre-conviction DNA law was subject to a balancing test. Rather than announce that "we always balance," Justice Kennedy, writing for the majority, tried to weave together specific features of other cases departing from the PSUWE framework in favor of a direct balancing test. Whether the resulting tapestry is so poorly woven that it is about to unravel has been debated, 2/ and Buza II misapprehends the but the Court itself has not officially abandoned the PSUWE framework. Indeed, soon after King, in holding that a warrantless search of a cellphone during an arrest was impermissible, the Court reiterated that "[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement," Riley v. California, 134 S.Ct. 2473, 2482 (2014), and demanded that "even when a cell phone is seized incident to arrest," id. at 2494, the police had better "get a warrant." Id. at 2495.

Although the Buza court is thus mistaken in its treatment of the threshold question of when direct, totality balancing is permissible, King does hold that a form of balancing is required for warrantless DNA swabbing. In the next installment, I will consider the court of appeal's effort to dismiss this balancing, as performed by the Supreme Court, as "completely inapplicable."

[Next installment]

  1. See David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013); David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014).
  2. Compare Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013), with David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013).
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Sunday, December 7, 2014

Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law

Buza I
For the reasons we have set forth, we conclude that the DNA Act ... unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.
Buza II
For the reasons we have set forth, we conclude that the DNA Act ... unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under article I, section 13, of the [California] Constitution.

Nearly seven years ago, Mark Buza set a San Francisco police car on fire to protest what he said was a corrupt government. Spotted running from the burning car, he was promptly arrested and brought to the county jail. There, he engaged in a second act of defiance, refusing to allow police to swab the inside of his cheeks to acquire a DNA sample. (He did, however, acquiesce in fingerprinting and writing a signature.) After his conviction for arson-related crimes as well as the separate offense of refusing to submit to DNA sampling, a court ordered him to give a sample before sentencing. In a third act of resistance, he refused, but when the court issued a further order allowing police to use force, he finally submitted to the swabbing. His DNA profile entered the California database, apparently without incriminating him in any other crimes.

The California Court of Appeal reversed the conviction for resisting “the seizure of his DNA at a time when he was entitled to the presumption of innocence, and [when] there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested ... .” California's DNA-collection law, the court reasoned, “violated his Fourth Amendment right to be free from unreasonable searches and seizures.” The court expressly declined to consider whether compelling DNA collection before a judicial finding of probable cause violated Buza’s “right to privacy under article I, section 1, of the California Constitution.”

The California Supreme Court granted review, vacated the appellate court’s judgment, and ordered that court to reconsider its reversal of the DNA-refusal conviction in light of the United States Supreme Court’s decision in Maryland v. King, 133 S.Ct. 1958 (2013).

In a lengthy opinion issued four days ago, the Court of Appeal, like Buza himself, stuck to its guns. For a second time, it held that the California initiative that mandates DNA sampling on arrest (and that has been upheld by several other courts) is unconstitutional. However, the court shifted ground. Now Presiding Justice Anthony Kline wrote: “we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.” (Emphasis added.)

I’ll leave it to California’s bar, bench, and scholars to debate how and why the Court of Appeal can be so certain that California’s constitution, which essentially reproduces the words of the Fourth Amendment, compels a different result than King might warrant. Here, I want to consider the Court of Appeal's analysis of the outcome that should follow under the U.S. Constitution as construed in King.

[Next installment]

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