The voters enacted Proposition 69 in 2004, which requires that the police take a DNA sample of anyone arrested for any felony. Notice the operative word "arrested". No warrant. No finding of probable cause.
How does that square with the Fourth Amendment? Big debate. On the one hand, we don't allow lots of searches without consent or probable cause. On the other hand, we allow fingerprinting, booking photos and other ancillary stuff as a standard practice. Which set of principles properly applies?
The Court of Appeal thought it was the latter, and struck down the requirement. But shortly thereafter, the United States Supreme Court decided Maryland v. King, which held that a very similar statute in another state wasn't unconstitutional. The California Supreme Court had granted review and stayed the present case pending King, and after that decision, last year, returned the case to the Court of Appeal for reconsideration.
So what did the Court of Appeal do? Fold?
Nope. Doubled down.
Justice Kline clearly favors Justice Scalia's dissent in King. His opinion on remand quotes pages and pages from it. Even calls it "piercing".
But relying on a dissent isn't going to persuade the California Supreme Court. Because it's a dissent.
So Justice Kline does what any good lawyer, or judge, would do. Distinguishes the case.
This statute is different, he says. For one thing, it applies to all felonies, not just the "serious" ones at issue in King. For another, that statute allowed DNA testing only after the person was charged -- and hence after a probable cause determination by a judge -- whereas California's law applies immediately after the arrest, and hence before any such hearing. Plus, California's statute allows familial DNA searches, whereas Maryland's expressly prohibited that practice. So there.
Justice Kline recognizes that King was a 5-4. It might well be that the majority in King wouldn't care about these alleged differences. But he's giving it his best shot. Only takes one vote to swing the decision the other way. Maybe for one of the justices, these differences will tip the scales.
But Justice Kline doesn't stop there.
He recognizes that these distinctions might well not persuade the Supreme Court. Indeed, in a footnote, he recognizes that they didn't even persuade the Ninth Circuit. A tribunal which, earlier this year, essentially gave up the ghost (albeit in a case that reviewed a preliminary injunction) and admitted in a four paragraph per curiam opinion that King essentially means that Proposition 69 is valid.
But Justice Kline isn't deterred. He gets it. So he expressly bases his holding on state law; in particular, Article I, section 13 of the California Constitution. The Supreme Court isn't permitted to review decisions that rest upon independent and adequate state law grounds. Gotcha.
We'll see if the California Supreme Court's willing to play the same game. Justice Kline thinks it's at least worth a shot. Time will tell whether the gambit works.
Count those votes.
