But the 9th Circuit appeals panel found that last June's Supreme Court ruling in the Maryland case undermined the ACLU's argument:

Plaintiffs’ ... challenges turn on essentially the same question: Is California’s DNA collection scheme constitutional as applied to anyone “arrested for, or charged with, a felony offense by California state or local officials?” After Maryland v. King, the answer is clearly yes.

In the Maryland case, the Supreme Court ruled that DNA identification is akin to police fingerprinting — simply an extension of a routine booking procedure with the aim of identifying suspects — and that the state's interest in effective law enforcement outweighed individual expectations of privacy under the Fourth Amendment. Maryland's law, which had been ruled unconstitutional by the state's own high court, is applied to a smaller set of "serious" crimes, not any felony. Maryland destroys DNA and removes it from databases when suspects are not convicted.

Judge Milan Smith, a member of the panel that issued today's 9th Circuit ruling, wrote a concurring opinion that said the U.S. Supreme Court decision is "fatal" to the ACLU's case and that the differences it cites between the California and Maryland laws are "illusory."

Neverthless, the appeals ruling allows the ACLU to continue litigating its case in U.S. District Court. Michael Risher, staff attorney for the ACLU of Northern California. said it's determining what its next steps will be.

"This ruling means our case is alive and goes forward," Risher told KQED's Alex Emslie. "California's law is much broader than Maryland's law, and the 9th Circuit wants the trial court to take a look at those differences and see which of them matter and which of them don't."

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Appeals Court Upholds California's DNA Collection Law