on the next "washington journal for look at the changes immigration policy. our guest is alan gomez. then chris eggleston discusses his new >> "washington journal" live every morning at 7:00 eastern on c-span. >> up next the oral argument in askell versus harris about mandatory d.n.a. collection of individuals arrested on suspicion of a felony. this is just over an hour.

>> good afternoon. please be seated. we're here for the argument of haskell versus harris. judge gould is appearing by video. good afternoon judge gould, can you hear me? >> good afternoon. you are coming through loud and clear. are we coming through? >> great. i can hear you fine. >> okay, counsel ready? you may proceed. >> good afternoon. for the plaintiffs, i'd ask to reserve five minutes for the rebuttal. >> you have the clock. you'll have what is left over. >> may it please the court, this case is fundamentally different from king because california's law applies to people who are never charged with an offense d those who are discharged

from lack of probable cause. there is nothing that can justify taking d.n.a. from these individuals who are not being prosecuted. king is tracking people as they go through the criminal justice system up through trial. >> counsel, i respect the sincerity of your view but the reality is the supreme court said in king that d.n.a. was like fingerprinting. if all of the things that you say about your particular clients are true, they would still nonetheless be fingerprinted and their finger prints retained in a national data base just like the d.n.a. how do you distinguish that? the court made it very clear several times that d.n.a. and same, rints are of the constitutionally one is a more modern technology. >> that is not how i read the

case. .n.a. is different from finger prints. d.n.a. is our genetic blueprint. finker prints have a history of being used to identify people, they do an excellent job of that. people who are arrested can be identified within minutes using their finger prints. none of this is true with respect to d.n.a. and if the court had simply wanted to say there is no problem using d.n.a. anytime our system wants to use finger prints whether it's in the criminal justice system or applying for a drivers license it could have said. so instead king as required by her cases engages in a new toalty of the circumstances balancing test and only after doing that decides that d.n.a. can be appropriately used in certain circumstances. >> counsel, are you challenging

the initial taking of the d.n.a. or the subsequent use? it seems to me on page 21 of the supreme court's opinion, the court wrote the additional intrusion upon the assistee's privacy is not significant and d.n.a. is a markedly more accurate form of identifying arrestees. i reid that to means the okay to take the d.n.a. at the time of arrest which is what happened to mr. king as part of the booking process. isn't your argument really what the police do subsequent to the taking of the sample? >> yes. under king the government may take d.n.a. at arrest for people arrested for serious crimes. however it cannot analyze or otherwise use that d.n.a. unless formal charges are filed and there is a judicial finding of probable cause to believe that the defendant is in fact guilty of a serious offense.

>> you say it has to be a serious crime but the examples that justice kennedy used were in making the point about utility of d.n.a. was the 9/11 terrorists and timothy mchave a both of whom were arrested or picked up, stopped on very minor charges. seems the thrust of the majority no matter that d.n.a. how it comes into the possession of the government in terms of an arrest is an incredibly valuable tool. i know they use the term serious offense but it's a little hard to understand rational of the majority opinion being limited to just serious offenses when they make the point using two examples of non-serious offenses. >> they do. but of course the reference to

cvay comes from a quote of freeholders. the significance to that quote is if they are encountering them in a traffic stop. but it does not allow them to take d.n.a. from every jaywalker or speeder. >> justice scalia i can't, the way he reads it, he says at page 1989 when there comes before us the taking of d.n.a. from an arrestee from a traffic violation, the court will predictably and quite rightly say we can find no difference between this case and king. make no mistake about it as a consequence of today's decision your d.n.a. can be taken and

entered into a national data base if you are ever arrested rightly or wrongly and for whatever reason. he was in the conference and heard what the majority decided and that's how he read it. how can we read it otherwise? >> i think it's fair they read the fourth amount and the interest involved in this case quite differently. >> i agree. but the reality is justice scalia was interpreting the majority opinion which is what controls us here as what he said. and if he is correct in his construction then you are out of luck, are you not? >> no, because the fundamental distinction between this case and king goes not to the seriousness of the offense. the fundamental distinction here is california is taking d.n.a. from people who are never charged with a crime or discharged for lack of probable cause. >> he says it doesn't matter if they are arrested.

he says if you are arrested rightly or wrongly and for whatever reason. so i would suggest i don't see how you can justify your point. i get your point about is done with it afterwards but i don't about the seriousness of the offense or anything of that nature because justice scalia is very clear about what the majority meant and it's not what you mean. >> could you clarify one thing? >> yes. >> in king, i understood the situation to be that they could only delect sample after the individual had been charged as opposed to simply just arrested, is that right? >> that's an am by gute youy in king. >> if you go to the regulations that the state attorney general issued in king justice department, they talk about

charged and they defined charge as the filing of a ticket like issuing a ticket or a complaint or an information or something. but in california as i understand it, your d.n.a. can be taken if you are simply taken down to the station and booked and kicked out the door because they determine no crime was committed is that right? >> that's how it happens in california. king is ambiguous because they talk about people formally charged but d.n.a. is taken at booking. i believe d.n.a. should only be taken from people charged with an offense. but i do appreciate that the government does have some interest in taking d.n.a. before then, even if they can't use it in case the person fails to appear. i don't think those interest are weighty enough to justify taking it at booking and then using it.

>> i thought the distinction was being correct it's part of the booking process. but i thought maryland wouldn't process it until charged. >> correct. >> so there is the taking of the sample and then there is the profiling that comes by going after the limited identifiers, the d.n.a. aspect, that would be a distinction from california because california processes it right away. >> not right away. >> in other words, they don't wait for a charge. >> correct, and that is the fundamental distinction. >> may i ask you about that distinction though and this may be because the supreme court wasn't collar voint in look at the situation we have in front of us. but if you go to the end of the opinion of the court, actually the court on page 23 of its slip

opinion, it keeps talking about there is little reason to question a legitimate reason of the government when when it's talking about the identity of the person arrested and it talks about identification of arrest ease. what do we make of that language as you fold it into the california statute? >> well, the first time the court talks about the identification of arrestees, it's from florence or hibble where it says in every criminal case it's necessary to know who has been arrested and who is being tried. when we talk about identifying arrestees, it's arrestees who are being prosecuted. because everyone in maryland was necessary pli being prosecuted. understand california it's important to remember that for the population that i'm most concerned with, those who will not be prosecute t at all, that decision they have been unconditionally released from

the criminal justice system within 72 hours or two working days that. is long before the samples would even get to the labbed. they are mailed to the laboratory. >> what they are talking about is they are saying as i read the supreme court you have an interest in knowing for example if they are wanted elsewhere. if you have an arrestee who ultimately is not charged but isn't there an intervening interest of knowing if that individual is wanted elsewhere having been arrested? >> no, i think once the person -- at once decision is made not to prosecute, twhauns person is unconditionally released as was the case with three of our plaintiffs, that interest is no longer there. >> even before being released, the court acknowledges there is a government interest in knowing if that person is wanted

elsewhere, is that not inconsistent with your argument? >> i don't think so. first of all, finger prints is how that determination is made. if somebody is want sd not done with d.n.a. if somebody is implicated in another crime is done with d.n.a. with california's infrastructure and most importantly with the current protections for privacy, that determination cannot be made in time to be meaningful for people who are arrested and then released before arraignment or at arraignment. because remember this court -- >> that was in king too, wasn't it? >> well, no. true ything you say was in king and as judge smith pointed out and justice scalia pointed out in decent. so where are we? >> you started by saying this case is different and all the

interests, many of the interest in king don't apply here. justice kennedy conveniently list them by number in the opinion. and i wonder if we could go down the list one by one and tell us which ones apply there that don't apply here. of the s on page 11 opinion says first and it goes on and lists them. can we go down quickly one by one and see which ones don't apply? the first one says there is a need to know that this is the right guy, this is the right person. that applies just as well here as it did in maryland, right? >> no, i don't think so. because it starts off in every criminal case. if there is no prosecution there is no criminal case. if you have someone who was

arrested once but now is unconditionally released the government doesn't have that same interest. >> that was true in king too. that was true and they said they could take it. >> this is on page 12 the individual identity is more than just a name and social security number. and the government's interest goes beyond ensuring the proper name is typed in the indictment. true here, right? >> so then we've got second on page 13. law enforcement officials bear response blingt for assuring that the custody of an arrestee does not create intolerable risk to staff and so on. equally true here as in king. >> not with respect to the people i'm talking about specifically. because by the time -- mr. king was in custody long after d.n.a. connected him to this rape. by the time results could help

law enforcement know in california what someone has done in the past, whether this person might be dangerous, the people i'm talking about are not in custody, there is no need to make bail determinations. they are free people. haskell was in six days of being arrested issued a certificate saying no charges are being filed. her d.n.a. being tested 31 days later didn't help the jail deal with security issues, she was not in jail. so define for us what is the ass or how do you define the people who to whom this lawsuit applies? >> thisth class -- >> it hadn't been certified,

right? >> yes it was certified in july of 2010. >> that class encompasses everybody who is arrested? >> everybody who is arrested and is required to give a d.n.a. sample. >> so you have to talk about everybody and that brings to us just like king. you can no longer talk about your individual people. you have to talk about the class. the class applies to everyone to whom the statute applies. in that respect the second thing here, the second interest is just like in king, right? >> well, there can be subclasses and there is the possibility of subclasses. but the fact there is a class that includes everyone does not mean everyone in the class is entitled to relief. here is the rule i'm asking for. california can take d.n.a. from people it arrests for serious offense. it cannot do anything with that

d.n.a. unless there is a prosecution and a judicial finding of probable cause. absent one of those are charges are dismissed, it should destroy the sample and exfung profile. >> you made that point in your brief. this case is unusual in this respect. you and your co-counsel filed a brief with the supreme court in which you argued haskell to the supreme court 12 different points including the ones you make to us today. what impact if any does that have in our analysis of whether the supreme court heard your argument and what they said, how that applies? for example in the fingerprint analogy. everything you said about your plaintiffs would like wise be true of finger prints. they get fingerprinted, those stay in the data base. whether or not they are charged or released and if they have a traffic accident whether or not

people are charged. i'm having difficulty understanding how you can carve out from what the supreme court said your particular people, particularly when you have literally argued haskell v. harris to the supreme court in maryland versus king, you made those arguments. >> the supreme court never mentioned haskell. >> they never mention our cases unless they reverse it. >> they did mention other cases it upheld or struck down d.n.a. testing of arrestees. i don't think that article three courts secretly reach out to decide other cases and i don't think you can judge that based on -- >> i'm simply saying they heard your argument, the very ones you despite g to us today, your desire they would go in a different direction, justice kennedy's opinion which was just

mentioned and we were going down those points and scalia's interpretation of that, it seems to me the distinction you are making on an applied basis can't possible hold water. this is like fingerprinting. your people don't get removed from the fingerprint base. they don't get removed from the d.n.a. base. >> i don't know that the scorte addressed the issue you are presenting here because in this case california does not ought matly destroy the samples if no charges are filed. so at least that part of the process is different. could you address that? you mentioned that was what your concern was. >> it is very different because in maryland as soon as charges were dismissed or if there was no finding of probable causes the destroyed and not analyzed.

in californias the different. if there is no probable cause. >> that is another case for another day. if somebody comes in and says i've been acquited by d.n.a. is still in the data base. i would like to bring an action on behalf of myself and all similarly situated to have that information expunged then we'll take that up. that will be an interesting case which i'm sure i don't know what the outcome of that will be. why is that something you decide now in a preconviction case with a class that you've practically admit sd too broad? why isn't the right thing to do here if not affirm, but at the very least why don't we send it back to reform a class? >> there is no need toe reform late a class. >> you do concede there are

people in your class that are just like king in every way. >> yes. >> and they lose. >> yes. >> how can we have relief avereded to a class when you admit some of the people in your class don't get the relief. >> we can't reshape classes. >> what this court can do is announce the correct rule of law and the district court can apply that. the entire class is important because it's ress jude cad da with respect to the entire class. thoys people who lose lose. they are bound by that because they are class members. the proper remedy is not to redefine the class. that would be unfair to the government. the proper remedy is to enter an injunction that is the rule of law this court aannounces. >> how would you art late that

group of people? how would you say who are these people that win and lose? >> we know the ones that lose. they are the ones just like king. who are the ones that win? >> i would ask that the district court issue an injunction prohibiting with respect to all class members the state of california from analyzing or otherwise using d.n.a. taken under these provisions under formal charges have been filed and there is probable cause to believe the person's whose d.n.a. is at issue has committed a serious offense. >> you want to us rewrite the statute? >> no, i want an injunction that simply says in implementing this statute the state cannot violate the fourth amendment and injunction has to spell out what is prohibited and what is not. there is a statutory remedy

to permit her to do that but she's not awailed herself of that remedy. >> there is a remedy >>. she hadn't pursued it but we don't know what the response would be. if they say yes we'll take it out and destroy the sample then she would get all the relief she's entitled to, would she not? >> if that happened. that would impose an exhaustion requirement. at doesn't apply under board of regions. that would impose an exhaustion requirement that is not appropriate here. >> would your argument also apply to fingerprinting. could you bring a lawsuit claiming that finger prints that were taken from the same people that you just described are like wise unconstitutional because people were released and never

charged. you've got this record that occurs.there after this supreme court said finger prints and d.n.a. are constitutionaly the same for purposes of this setting. how do you distinguish between those two? >> they are not the same. they share common characteristics. they are different technologies. we have to analyze them differently. we could bring that suit and the analysis would then be whether fingerprinting, what are the interests there and the enters are substantially different. s the supported by history. s the not at all -- it doesn't tell you -- you can't do family searching. >> you are talking about abuses of the statute and have you no evidence that it's been abused. justice den i did started with the bodily examinations and then went to photographs and then

they went to finger prints and now d.n.a. there is a different technology but he said constitutionally that the same analysis applied. what i'm puzz 8d about is how you can say that when there is no evidence of d.n.a. abuse in this case, you can distinguish between an ability on your part to strike down a statute that allows the collection of d.n.a. from people who have not been charged and are released within 48 hours, no pail and so on and not apply the same thing to fingerprinting. >> because d.n.a. and fingerprinting differ in ways i just mentioned and there are three additional reason. first of all, i believe that the retention of the d.n.a. sample and profile is continuing infringement on fourth amount liberty. different from fingerprinting. >> fingerprinting they keep them. >> and they periodically run

to see nst the system fit matches any new prints entered into the system. >> i don't believe it has constitutional issues. the profile can be used, admittedly it's not being used right now but can be used for family searching. maybe not how it's being used now but why it's different from fingerprinting. >> you're drawing the line at the judicial issue answer of probable cause is that correct? >> that's one of the lines, yes. that and the charging. >> charging or judicial determination. >> yes. >> so if somebody gets arrested and the person is released so this is no immediate charge but then there is. under your line drawing,

although the d.n.a. wasn't collected at the time of arrest, the law enforcement could not utilize that d.n.a. in any way, is that correct. >> not until there was a charge, some sort of judicial finding of probable cause. >> even though arrested, let's say they may have been arrested on a rape and then there was a high ate us the and there needs to be more investigation and they are not ready to charge and they are not detained so they don't need to be taken before the court, you are saying that even though the d.n.a. is now in the hand of law enforcement and you potentially have a complaining witness on a rape that the government is precluded from making that match, decphrect >> no, i'm not saying that. >> they haven't been in front of a judicial officer and there has been no charge yet. >> in that situation the government has several options. if there is semen left at the crime scene there is probable

cause to get a warrant to test that sample. or under california law section 817 of the penal courd they could get an arrest warrant precharging. >> there could be alternatives but having alternatives did you ant make necessarily a third alternative unreasonable or unconstitutional. so i'm asking is a yes or no one and if you have this rape situation that i laid out, does this mean that the officers are precluded from using that d.n.a. sample for further investigation? >> they are precluded from using this law to test that sample. they are not precluded from using any of the other alternatives they have which are less intrusive. >> what's the difference of this law and the others? what's your response to what seems a logical question and that is because there might be other 589 tist did you want make

this one necessarily unconstitutional. why couldn't they use the d.n.a. thund law? >> it's not reasonable and the vainlt of less intrusive alternatives. >> let's say we don't have a rape situation but we have the d.n.a., the arrestee is let go for whatever reason, they now run the d.n.a. through the data base and they say this actually this individual wanted in maryland for rape, murder and three other serious crimes. could they -- are they also precluded from making that match because the person has not yet had a judicial probable cause determination. >> they are not going to find out this person is wanted in maryland. they might find out this person is implicated in an unsolved case in maryland. finger prints will help them but

this won't. >> if they run they might find there is a warrant out in maryland or something else. but since finger prints according to the supreme court are really the same as the d.n.a., you're simply saying they are stuck to the fingerprint alternative, they can't use this alternative. i just want to understand where you are drawing the line. >> it will not help them find outstanding warrant. it will only help them find an unsolved crime and connect tony: that after this confirmation process. if there is an outstanding warrant they can find that. but that interest in simply connecting someone who has been released without charges, connecting him to an unsolved crime in maryland, that's the government's interest in solving cold cases that the supreme court refused to accept in king.

they never listed that as a legitimate reason to take d.n.a. from an individual. that's remarkable. >> you're out of time. >> thank you very much. -- e'll hear from >> good afternoon. d.n.a. fide fy indication of arrestees is a reasonable sthearge can be considered part of a routine booking procedure. this is the holding of the united states supreme court in maryland versus king and this holding is broad and unequivocal. the court does set program terse in the very next sentence of its opinion. when officers make an arrest supported by probable cause to hold for a serious offense and

they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestees d.n.a. is like fingerprinting and photographing a legitimate police booking procedure that is reasonable under the fourth amendment. >> probable cause determination was made by the court? >> yes. >> is that right? >> is that the case here in california under the stault year we're dealing with? ? no, maryland takes the sample ter booking and before and analyzes it only if there is a judicial finding of probable cause and charge. >> under our statute somebody could be arrested by a police officer for a felony out in the field. because they are arrested for a felony they have to be taken into the station and booked, decphrect >> correct. >> for whatever reason the

arresting officer may ultimately decide there is not enough there and just release the defendant, correct? >> correct. he could also release the defendant prior to any booking. >> takes him down to the station. as i understand the california statute, at that point they could request and demand d.n.a. sample. >> at booking? >> yes. >> yes. and that is what maryland versus king permits. >> but there has been no judicial determination of probable cause at that point. >> no, none of the factors that the pell lant identifies is r holding in king. >> the court says a valid arrest based on probable cause. so that's the premise of the uling and in that case there wasn't subject or challenged because there had been judicial determination.

now we're dealing with cases in our state where there is no such determination. so the basis of the court's opinion, the starting point is in doubt. so since i think when somebody is arrested, just from all the movies i've seen, they take them to the station and fingerprint them and take a picture before anything else happens. >> and now they take d.n.a.. >> it would be at that point. at that point there haven't even been charges filed? >> no, because taking -- >> i'm just asking factly how it happens. so at that point there haven't been charges filed. it's entirely possible and i'm sure it happens somebody is aken to the station, booked, fingerprinted and the police officer consults with the d.a.

and the d.a. says no, here are the reasons we're not going to charge this guy. we're not enforcing these, have too many and they decide to let him go. must happen, right? >> that's one of many options available. but not the only option. >> it's not an option. it's a factual scenario. >> it's possible. >> but there are a variety of things that can happen. >> of course. they could say we're going to book him and slam the door. buts the possible that nothing will happen. there will be no charge. it's possible that on consulting with the d.a., the d.a. will say we're not going to treat this as a felony, we're going to treat this as a miscommeen nor. that's possible. >> it's possible. it's possible the d.a. will say tell me more about the arrest. the arrest was illegal.

we don't want to get in a dispute about the legal alty. i take it under california law at that point the cheek swab would have been taken and the state is entitled to analyze the sample, right? >> that's correct. but the supreme court set -- >> none of those cases were dealt with by the supreme court because they assume probable cause and a valid arrest as a premise for the opinion. that's a fact, right? >> i don't think that's the case. the holding is very broad. when there is an arrest on probable cause and you've brought the individual to the station. >> we can argue about what the holding is but just as a factual basis as a premise, the court there was dealing with a situation where all the cases 've discussed are not sbrud.

the cases were the d.a. decide the arrest was bad. they didn't have a warrant or whatever, all those cases were not presented. >> correct. but the court set the time for collection at booking because the information that is available after booking can inform the charging decision. so in that scenario the charging decision isn't finished. the charging decision is still under review and subject to the information that is returned from the identification information that is obtained at booking. >> let's take the example ha the chief just gave and substitute fingerprinting for d.n.a. let's aassume that someone is arrested in a traffic matter and they are brought to the station. their fingerprinted and booked and the d.n.a. is taken.

but as the chief suggest the d.a. says this is weak. i'm not sure we have probable cause. are finger prints removed from the data base because that occurred? >> 2340. they remain in the data base and they are not expunged. >> do you know of any state or the federal government that has an expungement statute or fingerprint? >> california does not have that process even on an invalid arrest, the finger prints remain in the fingerprint data base. >> this is part of what justice kennedy referred to that is reasonable under the fourth amendment is it not? >> correct. >> so d.n.a. at booking is the equivalent of finger prints and that is what the court recognized. >> that may be so but that is not in fact covered by the opinion. it may follow logically from

what the opinion says. is the case talking about expungement of finger prints? s there a case saying that has litigated a question of whether or not finger prints need to be expunged? >> i don't think there is. >> there are california state cases. >> yes, who cares. >> for the individual -- >> federal law also as a retention policy. >> i'm asking has the case been litigated as a federal constitutional matter? there are state cases dealing with it and that's fine. is there a constitutional case

dealing with retention of fingerprint. most of us gave up finger prints when we became members of the bar. >> and the bench. >> well that was voluntary. we could have said no, i suppose. >> i gave out ten fingerprint sets. they couldn't get it right for me. but that's right. e all give up finger prints. but is any case dealing with whether or not the state is entitled to keep fingerprints if you find somebody totally incident or that the arrest was illegal? >> i think that there are processes pursuant to federal law and state law where an individual can apply to have their arrest records expunged if they are found factly incident. and i'm not sure whether or not that would encompass the same kind of expungement.

i think, as far as i understand it, finger prints are retained indefinitely and remain in the state and federal data base. >> if we deal with another issue besides just when one can keep the particular d.n.a. sample, when we deal upon when one can get rid of it. maryland all samples and profiles are immediately destroyed if all qualifying criminal charges are determined to be unsupportive. but in california quite opposite occurs. in fact, even if someone wants to have his d.n.a. sample destroyed, he must send a request to the court, to the d.n.a. laboratory and to the prosecuting attorney, right? >> and the court has the discretion to expunge and then

if the court doesn't expunge then denial is unappealable, isn't that correct? >> the process -- that is not a full description. >> i didn't expect it to be a full because i haven't got all day to give it to you to read the statute. but the bottom line is this is expunged only when the court has discretion and if the prosecutor says no, often it doesn't, it cannot happen? >> that is limited reading of that procedure. what the statute actually provides. >> tell me then it seems to me there is quite a bit of difference between automatic expungement on one side and going through the process and maybe get it done on the other side. and therefore, is that not a difference we ought to take into effect? that's my question. >> it's not a difference of constitutional significance.

>> why? >> because there is a valid procedure for an stroid have the d.n.a. sample expunged from the data base. there is an expedited procedure to do it and california has done it within two to four weeks and that's its average time. california modeled it's expungement process -- >> that is different from maryland, decphrect >>s the different. >> the court has a discretion in california where in maryland there is no discretion whatsoever. understand california if the court says no action pungment, there is no appeal and in maryland it's automatic expungement. >> there are statutory criteria for the judge to follow in the expungement provision and we'll assume the judge will follow those provisions. there is a hearing to allow the dement of justice to say fit hasn't already expunged the sample, look, this individual is qualified otherwise to have his

sample remain in the data base because he's a registering sex offender and so it gives in the vent that d.o.j. doesn't expeditiously expunge the sample pursuant to its own procedures, there is another forum for the individual to say i meet this criteria. >> the judge could just say no and that would be it, right? >> it's hard to imagen the judge wouldn't apply criteria in the statute. >> is that a yes? the judge could say no and that would be the end of it, true or false? >> correct. that is is a non-appealable decision. >> you wouldn't have to know why. >> we would assume that the court would follow the criteria.

>> you could assume anything you wish. the fact is you wouldn't know. >> is there anything in kennedy's opinion about the reason bs of the use of d.n.a. in the booking statute to an anlt to expunge the d.n.a. if the person were found innocent? >> no. >> didn't even enter into his thinking, did it? >> it didn't. >> are you going to speculate on what justice kennedy was thinking when he wrote an opinion that there was automatic expungement and there may have been no cause to address the issue. you going to speculate on what he was thinking? >> i think the opinion is a very broad opinion. the court was well aware of the difference in expungement procedures. it was aware of the difference between california's law and maryland's law. as your honor pointed out, we

told the court of the differences in california law and the a.c.l.u. told the court of the differences in the california law and the court was aware of the particulars of california law more than any other state. > it decided the case based on maryland law. we cover other statutes where rule is broad enough to cover anything other states may do. it's typical justice kennedy opinion. he is very careful common law kind of guy who takes a case in front of him and decide that case. that's how he writes his opinions. >> this was an intentionally broad opinion. >> but counsel, he kept putting in to his broader statements the foundational aspects one of which included that there was automatic expungement. >> that appears nowhere in the

opinion except in the recitation of maryland's law which was dropped at that point. what is clear is that the court intended to set a national standard, it was aware that 28 states in the federal government have laws similar to maryland. it acknowledged that the state laws vary in their particulars and that is their word and it recognized that it's holding goes beyond those particulars and quote imp kates more than specific maryland law. >> could i also reference you ome other language which i grappled with this problem all the way through this but it seemed to me justice kennedy said statutory safe guards on use are enough. that is statutory or regulatory duty to avoid unwarranted disclosures generally alace

privacy concerns avoiding unwarranted disclosures is more important. it seemed to me that was his approach. would you agree? >> his approach, he recommend nidsed the statute tori and regulatory safe guard but those safe guard individual privacy and that is the lynch pin of the decision that standardize these procedures and that was the reference that the court in other parts of the opinion explained that these use in confidentiality redecrixstrixes in the law make the invasion of privacy minimal. s the those factors. cod does does require expungement. >> so it would be different some of those restrictions weren't in place, hadn't been in place, right? >> i mean let's say for example maryland took all this information and put it online

where everybody could reach it, sort of like the sex offender registry and the balance would have been difference, right in >> no. just because decpwhrsh no. >> just no? weighedecause the court the constitutionally significant issues in this case. the government interests -- >> one of the interest was on the one hand intrusion on the individual. and you don't think it would weigh differently if the intrusion on the individual had been much more serious if for example the coding had been done on non-junk d.n.a. but on d.n.a. -- you don't think ha the weighing would have been different? >> yes, it recognized that as one of the significant factors that the intrusion is minimal.

>> why aren't those safe guards part of the balance in king? >> those set a national standard and all of the samp are also processed pursuant to those standard there. isn't leeway how to process these samples. >> how does he set a national standard when he emphasizes some of these restrictions that maryland law imposes? >> he didn't relegate it to maryland law. >> he was dealing with maryland law. when you think about maryland law and how ate plice and how it protects a privacy and how it insists on probable cause and how it requires that the sample be destroyed should the person not be prosecuted or should the person be found not guilty, all

of those to my mind just fit into the balance, the balance here of dealing with a very -- sive sp in privacy interest in privacy. we are getting there and we are in a new age and a new phase of being able to not only identify people but identify who their relatives were, all their problems, their mental problems, their physical problems, the whole picture is there. and so that's a very serious intrusion. and i think when he talks about these limitations, he's trying to strike a balance. and he was dealing with

maryland. california is pretty extreme in the other way. you can arrest people who are joyriding and you can book them turn out and it may hat they are arrested on a misdemeanor. we have a different system of law here. that is the way i read it. he's trying to strike a balance. >> the court struck a different balance and just because maryland law includes elements that go beyond what is required -- >> why does he emphasize them? >> maryland's law? he didn't emphasize maryland law. in fact he used california examples throughout the opinion. and just because maryland law includes elements that go beyond the fourth amendment does not

mean that the constitutional bar is set at maryland's law. the u.s. supreme court has repeatedly recognized and made clear that the fourth amendment outcome does not vary with the laws of particular states. so a state can provide more protection and a state can enact limitations. but each of these rights and limitations does not go into the balancing test and affect the fourth amendment calculus. otherwise the fourth amendment would vary from state to state and ha is a proposition that the supreme court has rejected. >> what the state law happens to be like and what balance it the es and how it protects privacy interests. we have a difference of opinion than. >> if we up hold the judge's

decision, is there anything left of the case? would the case go back to the northern district of california for reformulation of the class and perhaps some kind of a prile trial on the merits? >> we think this case begins and end with maryland versus king. there would be nothing left of this case. >> you think that your position is that the supreme court's decision in king forecloses any claim that simple arrests that they st that results, canning them down to the station and booking them and determining -- the cop, the arresting officer says i've made a mistake, let him go. d.n.a. is taken. it's your view that king forecloses any claim by these guys they don't have a possible claim? >> right now there for someone a mismatch between the certified

class. >> the class now in light of king is overly broad but they could narrow it down or do individual and try and set some precedent on an individual basis. >> it would be inconsistent with the holding in king to draw the line at charging. >> so as long as you're arrested and taken to the station and booked, that's it? >> right, because your identification information informs the charging decision. >> there are a lot of situations where individual can be arrested, booked, bailed out according to the county bail schedule and then given a notice to appear at a later date. so there is no finding of judicial finding of probable cause or a charging decision and yes they are on a bail and release. >> they could collect it but

they couldn't test anytime maryland. >> correct. so the court looked at that as a delay, not as a good thing but as a delay. so it's not that california is premature. it's that maryland is delayed in its analysis and was making that observation as well. and the court said the finding of the analysis goes to the efficacy. > so when does it take place under the california scheme if at all? >> it can happen at a lot of different junk chures? >> where? walk me through the process. well, it could be made -- > when and where is it made? ? where is the problem made

-- > prior to that time and the case can be charged. if the district attorney doesn't charge right away it could be .or a whole number of reasons >> what you're saying is that there is no class of arrestees who could be picked up on what would be called a felony, everybody would agree, it wasn't a serious offense. they are booked but never really nelled detention other than going through the booking process and kicked loose. once they've had the swab taken,

then the state is free to go ahead and analyze it and process it as occurred in maryland. and all of the rational in justice kennedy's opinion about criminal history and the protecting of the jail lors and the imp significance of conditions of release or revocation of bail, where do those come into play in that category of people? >> it comes into play at the out set. felony is a serious offense, is the classic definition of a serious offense. but in the opinion it is also clear there is no threshold of serious nns particular. >> you are read leaving out some of what justice kennedy elaborated on because he kept repeating serious offense. >> right and some of those

examples came from california. >> that may be but it's just somebody who got wobbler, on what is a for example, and there is no salt or anything like that. it system itself recognizes wasn't serious, so they kick it out, and that persons dna is now capture. fingerprints, we give up fingerprints and loss of contact. the big difference about dna, , defending that dna data database by rest. now they are creating a database , and the thing or print doesn't carry with it all the biological