Is a check swab for a felony offense an unreasonable search? People v. Buza

Posted by on July 1, 2018 in #DUIdata | 0 comments

Is a check swab for a felony offense an unreasonable search? People v. Buza

Is a check swab for a felony offense an unreasonable search? The California Supreme Court say no, per their April 2, 2018 decision People v. Buza. Here, Defendant was arrested and booked on felony arson charges. For booking, the Jail required a cheek swab per the DNA Act (California Penal Code 298.1(a)), which Defendant refused. So he got an added criminal charge of refusing to provide a DNA sample. Jurors convicted across the board on all charges, both the arson and the DNA refusal.

Defendant argues the cheek swab is an unreasonable search, and the Court disagree. However, the Cal Supremes are very careful to explain this is a limited holding to this specific class of persons. The Court states the specific issue: “Whether the statute’s DNA collection requirement is valid as applied to an individual who, like defendant, was validly arrested on “probable cause to hold for a serious offense”—here, the felony arson charge for which defendant was ultimately convicted—and who was required to swab his cheek as “part of a routine booking procedure” at county jail.” And the Court gives an equally particular holding: “Under the circumstances before us, we conclude the requirement is valid under both the federal and state Constitutions, and we express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees.” They reiterate this again at the end of the decision: “Our holding today is limited. The sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson.”

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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci

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