Does the collection of DNA samples under the California Criminal Code Act violate the Fourth Amendment?

The particular question before us is whether, when an individual is arrested for a felony offense, and his or her DNA is collected not on account of that arrest, but with respect to a prior felony conviction, the DNA collection constitutes a Fourth Amendment violation. Surely, if it is constitutional to collect his or her DNA because of the current arrest, a fortiori, it is also constitutional to collect his or her DNA because of a

Page 12

prior felony conviction.⁴ (Cf. Maryland v. King, supra, ___ U.S. ___ [133 S.Ct. 1958].)

In his opening brief on appeal, defendant did not raise any arguments based on the California Constitution. However, after we held oral argument in this matter, a case was decided addressing whether the collection of DNA samples under the Act violates the California Constitution. (People v. Buza, supra, 231 Cal.App.4th 1446.) Defendant requested that we vacate submission of this matter and permit both further briefing on People v. Buza and additional oral argument. We granted the request to vacate submission and permit further briefing, but did not grant the request for additional oral argument. The parties each submitted further briefing.