SAN FRANCISCO (AP) — A federal appeals court decided to take another look at a California law that requires DNA samples to be taken from anyone arrested for a felony, not just after a conviction.
A panel of the 9th U.S. Circuit Court of Appeals upheld the law in February on a 2-1 vote. But the court said Wednesday a majority of its judges had decided to set the ruling aside and have an 11-judge panel review the case.
Opponents of the law say it amounts to an unconstitutional search and seizure.
But in February's ruling, Judge Milan Smith likened it to fingerprinting, saying law enforcement officers analyze only enough DNA information to identify the individual.
Law enforcement's interest in solving cold cases, identifying crime suspects and even exonerating the wrongly accused outweigh any privacy concerns raised by the forced DNA collections, the panel ruled.
State Attorney General Kamala Harris, a supporter of the law, said it has been used to reopen many cold cases.
Judge William Fletcher dissented, writing that the DNA samples are not used for identification purposes but as an investigative tool that is taken without a warrant or reasonable suspicion.
The DNA samples are obtained with a swab of the cheek and stored in a DNA database. Arrestees who are never charged with a felony can apply to have their samples expunged, although prosecutors can veto the request.
Voters overwhelmingly approved a ballot measure for the law in 2004. A separate case challenging the law is pending in the state court system.
The appeals court panel is expected to conduct its new hearing during the week of Sept. 17.