Report: ‘Rogue’ DNA Databases Used by Local Law Enforcemen

When the U.S. Supreme Court ruled earlier this month that DNA could be extracted without a warrant from individuals arrested for serious offenses, many scoffed at the apparent disregard for Fourth Amendment rights.

Sure, as Santa Ana Sex Crimes Defense Lawyer Houman Fakhimi understands, some states had allowed this to varying degrees years before this ruling was issued.

But what is even more troubling is the fact that many local law enforcement agencies and prosecutors’ offices – including the Orange County district attorney’s office – have been doing so without regulation, often for low-level offenses and, in some cases, for individuals who have never been arrested or even suspected of a crime – ever.

According to a recent report by The New York Times, the Orange County District Attorney’s Office has amassed some 90,000 DNA profiles in its own internal database. In many cases, these profiles are taken from defendants convicted of minor or misdemeanor crimes as part of a plea deal. Often, it is done in exchange for having the charges against them dropped or significantly reduced.

What prosecutors hope to do with this information is presumably use it as a cross-reference to solve past and future crimes.

California has a checkered history with criminal DNA databases. The California DNA Act, passed in 1998, allowed corrections authorities to draw DNA samples from felony arrestees. It was understood that those samples would then be turned over to law enforcement for potential analysis. Cross-referencing that information with open cases could result in a “hit,” which would presumably allow law enforcement to proceed with another criminal case against the defendant.

However, a 2011 ruling in People v. Buza in a state appellate court held the act unconstitutional. This month, the federal Maryland v. King trumps that ruling, once again allowing state officials to collect DNA from felony suspects.

However, the ruling may not matter all that much to local agencies that have taken it upon themselves to amass their own collection of DNA profiles. Law enforcement administrators have expressed frustration with the fact that the state and national DNA databases are slower-moving or that they don’t allow them to catch lower-level criminals.

So what they’ve done is essentially made up their own rules for when DNA collection is appropriate. While the local district attorney’s office has done it with low-level offenders, the Times reported that in some cases, profiles were taken without an individuals consent or knowledge of the purpose.

One troubling example given was the routine collection of DNA from crime victims. They were told the samples were used to eliminate their own DNA from the scene. And maybe that was initially true. However, those samples were then sent to the local database to be held indefinitely, subsequently used as a cross-reference in future criminal cases.

The unregulated nature of local law enforcement practices in this realm open the door to significant questions of Fourth Amendment rights. It’s plausible that a successful challenge could be mounted in cases where DNA evidence used to identify a suspect in a certain case was collected improperly.

Contact Houman Fakhimi trial attorney at (714) 705-6701 as soon as possible if you are arrested in Santa Ana.

Additional Resources

Police Agencies Are Assembling Records of DNA, June 12, 2013, By Joseph Goldstein, The New York Times.