This is a big case and one that could very well be decided by the U.S. Supreme Court. Back in 2004 California voters approved the collection of DNA evidence from people who are arrested for felonies. Five years later, a San Francisco woman who was arrested and coerced into giving up her DNA but was never convicted of a crime. She sued.
It was March 2009 when Lily Haskell was involved in a scuffle with police during an anti-war demonstration in San Francisco's Civic Center. She was cuffed and arrested for a felony violation of an obscure lynching law. The district attorney threw out the case. Haskell was never charged but before she was released, police told her she had to give up a swabbed sample of her DNA or spend more days in jail.
"And you're likely to get out tomorrow if you don't refuse but if you refuse you'll probably be in until Tuesday and at that point that was Saturday," Haskell said.
Haskell is now suing, claiming the swab was a violation of her Fourth Amendment protections against unlawful search and seizure.
"Taking somebody's genetic tissue from them is a seizure," American Civil Liberties Union attorney Michael Risher said.
The ACLU argued on Haskell's behalf that the California law is unconstitutional.
An attorney for the state argued the DNA swab is no more invasive than finger printing.
"And I think that fingerprinting is a good analogy, because it's the exact same information that is obtained by the state when it develops a DNA profile versus when it collects a finger print," Deputy Attorney General Daniel Powell said.
Powell told the 11 judge 9th Circuit Court of Appeals panel that finger printing is also a search. But several of the judges appeared not to buy that comparison.
"Now if I'm arrested, I wind up leaving behind in the custody of the government the intimate details of my medical condition, my heritage, whatever else is in that DNA sample," Judge Raymond Fisher said.
The ACLU attorney representing Haskell was at least a little encouraged by the judge's questions.
"I was surprised; I didn't have a chance to deliver all the little speeches I had prepared, I'll put it that way," Risher said.
Risher knows however the judges decide, the case is a candidate for consideration by the U.S. Supreme Court.
But since San Francisco District Judge Charles Breyer decided the original case, if it does go to the Supreme Court, Breyer's brother Stephen will recuse himself and deprive Haskell's side of one of the courts liberal justices.