EFF Asks Court To Rein In Orange County, CA’s DNA Dragnet
from the grabbing-DNA-from-jaywalkers-because-reasons dept
DNA collection at the time of arrest may make sense in certain cases. If it’s a violent crime — rape, murder, home invasion, etc. — it probably is smart to take some sort of a sample which may help place the suspect at the scene of the crime.
Not that DNA evidence is infallible. It’s considered the gold standard, but it’s closer to pyrite when the government introduces it in criminal cases. But it does make sense that cops may want to collect DNA from alleged violent crime perps, and if they have the probable cause to do so, more power to them.
But that’s not how it works in Orange County, California. DNA collection has become a dragnet wholly unrelated to the pending criminal charges. The massively corrupt Orange County DA’s office has been building a massive DNA database by offering freedom in exchange for becoming a data point.
As the EFF points out in its post, the Orange County DA’s office has been collecting DNA from people who’d rather provide a sample than deal with the multiple negative outcomes of being arrested for even very minor crimes.
Should the government be allowed to collect your DNA—and retain it indefinitely—if you’re arrested for a low-level offense like shoplifting a tube of lipstick, driving without a valid license, or walking your dog off leash?
Betteridge (and common sense) says “No.” But that’s what’s happening in Orange County. And the thing that shouldn’t be happening is providing the DA’s office with plenty of DNA samples it had no business collecting in the first place.
Since 2007, the Orange County District Attorney’s Office (OCDA) has been running an expansive program that coerces thousands of Orange County residents annually to provide a DNA sample in exchange for dropping charges for low-level misdemeanor offenses. Through the program, the OCDA has amassed a database of over 182,000 DNA profiles, larger than the DNA databases of 25 states. OCDA claims a right to indefinitely retain the DNA samples it collects and to share them with third parties who may use them in new and unknown ways in the future. Unlike state and federal arrestee DNA databases, OCDA does not allow anyone to have their DNA expunged from its database.
The constitutionally-suspect DNA collection was sued in 2021 by a pair of criminology professors, who sued on behalf of everyone conceivably affected by this program. The plaintiffs alleged the harvesting of DNA from misdemeanor suspects violated the right to privacy guaranteed by the state constitution. The OCDA and the county argued no such violation took place because the arrestees waived their privacy rights by consenting to having their DNA collected.
This case is now being appealed. The EFF has filed a brief [PDF] arguing that state law only allows for the collection of DNA from people arrested on felony charges. What the state calls “consent” is actually just coercion: the promise of immediate freedom in exchange for arrestees’ waiving of their rights. If the OCDA’s office was honest with arrestees, it would make it clear it is not legally allowed to collect these samples and that misdemeanor suspects are free to go whether or not they provide consent.
With all of the information that DNA can reveal about familial, medical, and sexual history, it is clear that people have a protected privacy interest in their DNA. Misdemeanor arrestees, whose DNA is targeted under OCDNA, have a reasonable expectation of privacy in their DNA because of the entirety of information made available to the OCDA, and the potential for future private information being uncovered because OCDA retains both a profile and the full DNA sample. The OCDA argues that misdemeanor arrestees who provide their DNA under their program have consented to doing so, thus waiving their privacy interests. But this Court should closely scrutinize that argument. Those providing their DNA are doing so under extreme circumstances, where they may have to make decisions quickly and without the advice of counsel, and thus may not understand the full implications of consenting to provide their DNA. In high pressure situations such as traffic or Terry stops, or—as here—plea bargaining with a district attorney, research has shown that consent is often a legal fiction, with the vast majority of individuals consenting to law enforcement searches. Moreover, even if a misdemeanor arrestee understands that OCDA can retain their DNA sample indefinitely, they may not understand that the DNA can be tested not just for comparison to crime scene samples, but also for uses such as familial searching—to implicate someone else entirely—or in new and unknown ways in the future.
People under duress can’t meaningfully consent, especially when they’re given no access to legal advice and presented with only the information law enforcement wishes them to know.
The fact that DNA collection and testing is cheaper and easier than it’s ever been is just more reason for the court to place limits on this practice, if not shut it down until it aligns with constitutional guidelines. Failure to do so will embolden other California law enforcement agencies, which will deploy error-prone collection/analysis methods with greater frequency, just because no higher form of authority has told them they can’t.
Rapid DNA analyzers—portable machines about the size of a laser printer that can be used by non scientists outside a lab, can produce a DNA profile in 90 minutes or less for as little as $100 per sample. They are increasingly being used by federal, state, and local law enforcement across the country, including in Orange County. Rapid DNA has shown significant error rates, even when used in a lab on high-quality single-source samples, like those obtained from a cheek swab. Orange County, however, is using Rapid DNA on crime scene samples as well, despite cautions from the FBI and a consortium of expert forensic science working groups in the United States and Europe that Rapid DNA should not be used outside the booking context. Given the convenience, speed, and low cost of Rapid DNA, its availability could encourage more agencies to create their own local DNA databases, just as OCDA has done.
And there are other problems. The EFF notes that there’s an open debate across several jurisdictions (as well as several circuit courts) as to what protections and rights are affected by cavalier collections of DNA unrelated to the alleged criminal act. And there’s no conclusive evidence showing wide-ranging collections do anything to reduce crime or contribute to higher investigation clearance rates. For the most part, it appears law enforcement agencies are doing this because they can — something more motivated by easy availability and low cost than any specific law enforcement purpose.
A lot of this will hinge on how the judge handling the case decides to interpret consent. If the judge says threatening to toss someone in jail over a misdemeanor charge doesn’t change the consent equation, the program will continue unabated. If, however, a court recognizes that consent is rarely freely given when someone’s freedoms are at stake, the DA’s office will have to find a more lawful way to fill its DNA coffers.
Filed Under: california, dna, dragnet, evidence, ocda, orange county
Comments on “EFF Asks Court To Rein In Orange County, CA’s DNA Dragnet”
Coercion and Citizen’s Arrest
Suppose you or I were to see someone commit a crime, approach them, inform them of their crime, but offer to not arrest them in exchange for them waiving a right or two – say for example, their right to the money in their wallet or their right to keep their daughter’s phone number private.
Would that be lawful? Or would it be declared coercion and our own arrest would follow?
Police and prosecutors have LESS freedom to ignore due process than someone making a citizen’s arrest does, by law.
Well because its not a big deal, everyone in the DA’s office & the police force have submitted their DNA to the database as well right??
In the examples provided, a delay to obtain a warrant would probably not cause a problem. This isn’t a blood alcohol test which would be time sensitive. So while it may “make sense”, if you to protect people from unnecessary searches, requiring a warrant seems entirely reasonable.