March 21, 2014
The Supreme Court this week granted review in People v. Lowe, which raises the issue whether Penal Code section 296, which permits the collection of DNA from certain felony arrestees, violates the Fourth Amendment under the analysis of Maryland v. King (2013) __ U.S. __ [133 S.Ct. 1958]. A 5-4 U. S. Supreme Court held in King that taking and analyzing a cheek swab of a felony arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
Lowe is interesting for reasons besides the cutting-edge legal issue involved.
To begin with, this is the second time the Supreme Court has granted review in Lowe. The court first granted review when King was still pending and, after King was decided, the court transferred the matter back to the Court of Appeal for reconsideration in light of King. The Court of Appeal did so in a published opinion, concluding that its earlier opinion — holding that “the mandatory and warrantless collection and analysis of buccal swab DNA samples from felony arrestees does not violate the Fourth Amendment” — was consistent with King.
Second, the Supreme Court previously had pending another case — People v. Buza — raising the same DNA-collection issue. In fact, Buza had been fully briefed for several months when the U. S. Supreme Court granted certiorari in King. Our Supreme Court then put Buza on hold and, after, King was decided, transferred the case back to the Court of Appeal for reconsideration in light of King. Supplemental briefing is almost complete on remand, but the Buza Court of Appeal now knows that, whatever its decision, the California Supreme Court is likely to grant review and again put the case on hold, this time for Lowe.
Third, coincidentally, the Supreme Court granted review in Lowe just a day before the Ninth Circuit issued an en banc opinion in Haskell v. Harris, rejecting a broad attack on California’s DNA-collection procedure. The Lowe Court of Appeal opinion relied in part on the Haskell panel opinion that was reheard en banc.
Finally, the Lowe Court of Appeal (Fourth District, Division One, in San Diego) has issued two opinions and had review granted twice, and it wasn’t even that court’s case originally. The case was transferred — yes, by the Supreme Court — from the Fourth District, Division Two, in Riverside, presumably to help out the Riverside court with its case overload. There’s one good deed that has not gone unpunished.