Compulsory DNA Collection:
A Fourth Amendment Analysis
Anna C. Henning
Legislative Attorney
February 16, 2010
Congressional Research Service
7-5700
www.crs.gov
R40077
CRS Report for Congress
P
repared for Members and Committees of Congress
Compulsory DNA Collection: A Fourth Amendment Analysis
Summary
Relying on different legal standards, courts have historically upheld laws authorizing law
enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the
Fourth Amendment to the U.S. Constitution. However, prior cases reviewed the extraction of
DNA samples from people who had been convicted on criminal charges. New state and federal
laws authorize the collection of such samples from people who have been arrested or detained but
not convicted. On the federal level, the U.S. Department of Justice implemented this expanded
authority with a final rule that took effect January 9, 2009.
Only a few courts have reviewed the constitutionality of pre-conviction DNA collection. The two
federal district courts to have considered the issue applied the same Fourth Amendment test – the
“general balancing” or “general reasonableness” test – but reached opposite conclusions. In
United States v. Pool, the U.S. District Court for the Eastern District of California held that the
government’s interest in collecting a DNA sample from a person facing charges outweighed any
intrusion of privacy. In United States v. Mitchell, the U.S. District Court for the Western District
of Pennsylvania reached the opposite conclusion.
Points of disagreement between the two district court opinions are likely to reemerge as themes in
future decisions addressing pre-conviction DNA collection. One difference is whether the
defendant’s status as a person facing criminal charges was viewed as impacting the scope of
Fourth Amendment protection. Another is the extent to which the government was seen as having
a legitimate interest in obtaining a DNA sample in particular, rather than a fingerprint or another
identifier. Finally, the courts disagreed regarding the degree of the privacy intrusion caused by
collecting a DNA sample. The latter questions are framed by a larger debate about the nature and
role of DNA in law enforcement. For example, is a DNA sample merely a means by which to
identify a person, like a fingerprint? Or does it present a greater privacy intrusion?
A few additional factors might complicate courts’ analyses of DNA collection in future cases. For
example, emerging scientific research suggests that the type of DNA used in forensic analysis
might implicate a greater privacy intrusion than courts had previously assumed. In addition, most
courts have yet to review the constitutionality of storing convicts’ DNA profiles beyond the time
of sentence completion.
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Compulsory DNA Collection: A Fourth Amendment Analysis
Contents
Introduction ................................................................................................................................ 1
Background on Law Enforcement Use of DNA ........................................................................... 1
Statutory Framework................................................................................................................... 2
Expansion of Statutory Authorities for DNA Collection and Analysis .................................... 3
Expungement Provisions....................................................................................................... 4
Fourth Amendment Overview ..................................................................................................... 5
Search or Seizure .................................................................................................................. 5
“Reasonableness” Inquiry When the Fourth Amendment Applies .......................................... 6
Diminishment of Privacy Expectations Under Supreme Court Precedent ............................... 8
Case Law on DNA Collection ..................................................................................................... 9
Reasonableness of Post-Conviction Collection ...................................................................... 9
Reasonableness As Applied to Arrestees.............................................................................. 11
Issues Courts are Likely to Consider in Future Cases................................................................. 13
New Research on Junk DNA............................................................................................... 13
Storage of DNA Profiles After Punishment Ends ................................................................. 13
Conclusion................................................................................................................................ 14
Contacts
Author Contact Information ...................................................................................................... 15
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Compulsory DNA Collection: A Fourth Amendment Analysis
Introduction
In recent years, state and federal laws have facilitated law enforcement’s expanded use of
deoxyribonucleic acid (DNA) for investigating and prosecuting crimes.1 Such laws authorize
compulsory collection of biological matter, which local law enforcement agencies send to the
Federal Bureau of Investigation (FBI) for analysis. The FBI then stores unique DNA profiles in a
national distributive database, through which law enforcement officials match individuals to
crime scene evidence. Early laws authorized compulsory extraction of DNA only from people
convicted for violent or sex-based felonies, such as murder, kidnapping, and offenses “related to
sexual abuse” – crimes associated with historically high recidivism rates and for which police
were likely to find evidence at crime scenes.2 Since the turn of the century, new laws have greatly
extended the scope of compulsory DNA collection, both by expanding the range of offenses
triggering collection authority, and, more recently, by authorizing compulsory collection from
people who have been arrested but not convicted.
Litigants have challenged compulsory collection and the subsequent analysis and storage of DNA
as unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution.
Although they have reached their conclusions using different analytical approaches, federal and
state courts have generally upheld compulsory DNA collection as non-violative of the Fourth
Amendment. However, prior cases involved the collection of DNA samples from people who had
been convicted of a crime. More recently, a few courts have addressed such collection from
arrestees, with differing results. This report examines statutory authorities, constitutional
principles, and case law related to compulsory DNA extraction and analyzes potential impacts of
recent developments for Fourth Amendment cases.
Background on Law Enforcement Use of DNA
DNA is a complex molecule found in human cells and “composed of two nucleotide strands,”
which “are arranged differently for every individual except for identical twins.”3 Relatively new
technology enables DNA analysts to determine the arrangement of these strands, thereby creating
unique DNA profiles.4
1 For more on the progression of federal legislation authorizing use of DNA, see CRS Report RL32247, DNA Testing
for Law Enforcement: Legislative Issues for Congress, by Nathan James.
2 For example, offenses triggering DNA collection authority under the original DNA Analysis Backlog Elimination Act
of 2000, P.L. 106-546 (2000), included: murder, voluntary manslaughter, and other offense relating to homicide;
offenses relating to sexual abuse, sexual exploitation or other abuse of children, or transportation for illegal sexual
activity; offenses relating to peonage and slavery; kidnapping; offenses involving robbery or burglary; certain offenses
committed within Indian territory; and attempt or conspiracy to commit any of the above offenses.
3 United States v. Kincade, 345 F.3d 1095, 1096 n.2 (9th Cir. 2003), vac’d and rehearing en banc granted, 354 F.3d
1000 (9th Cir. 2003).
4 Forensic scientists use “short tandem repeat” technology to analyze 13 DNA regions, or “loci.” Although it is
theoretically possible that two unrelated people could share identical DNA strands, “the odds that two individuals will
have the same 13-loci DNA profile is about one in a billion.” Department of Energy, Human Genome Project
Information: DNA Forensics, at http://www.ornl.gov/sci/techresources/Human_Genome/elsi/forensics.shtml.
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In the law enforcement context, DNA profiles function like “genetic fingerprints” that aid in
matching perpetrators to their crimes.5 As with fingerprints, law enforcement officers collect
DNA samples from specific classes of individuals, such as prisoners. However, compulsory DNA
collection generally entails blood or saliva samples rather than finger impressions, and DNA
profiles can later match any of many types of biological matter obtained from crime scenes.6 For
these reasons, DNA matching is considered a “critical complement to,” rather than merely a
supplement for, fingerprint analysis in identifying criminal suspects.7
The FBI administers DNA storage and analysis for law enforcement agencies across the country.
After a law enforcement agency’s phlebotomist collects a blood sample pursuant to state or
federal law, the agency submits the sample to the FBI, which creates a DNA profile and stores the
profile in the Combined DNA Index System, a database through which law enforcement officers
match suspects to DNA profiles at the local, state, and national levels.8
FBI analysts create DNA profiles by “decoding sequences of ‘junk DNA.’”9 So-called “junk
DNA,” the name for “non-genic stretches of DNA not presently recognized as being responsible
for trait coding,” is “‘purposefully selected’” for DNA analysis because it is not “associated with
any known physical or medical characteristics,” and thus theoretically poses only a minimal
invasion of privacy.10
Statutory Framework
The categories of individuals from whom law enforcement officials may require DNA samples
has expanded in recent years. The federal government and most states authorize compulsory
collection of DNA samples from individuals convicted for specified criminal offenses, including
all felonies in most jurisdictions and extending to misdemeanors, such as failure to register as a
sex offender or crimes for which a sentence greater than six months applies, in some
jurisdictions.11 In addition, a federal and some state statutes now authorize compulsory collection
from people whom the government has arrested or detained but not convicted. As discussed infra,
5 See DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. 74932,
74933 (Dec. 10, 2008) (to be codified at 28 C.F.R. pt. 28) (“DNA profiles, which embody information concerning 13
‘core loci,’ amount to ‘genetic fingerprints’ that can be used to identify an individual uniquely”).
6 Under federal statute and analogous state laws, officials collect DNA from “tissue, fluid, or other bodily sample.” 42
U.S.C. §14135a(c)(1). To facilitate especially “reliable” DNA analysis, FBI guidelines direct federal law enforcement
officials to rely on blood samples. See United States v. Kincade, 379 F.3d 813, 817 (9th Cir. 2004) (en banc).
7 DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. at 74933-34.
8 The Combined DNA Index System includes a “hierarchy” of DNA-profile databases, including a National DNA
Index System, which facilitates sharing of DNA profiles between participating law enforcement agencies throughout
the country; a State DNA Index System, through which DNA profiles are shared throughout a state; and a Local DNA
Index System, from which DNA profiles originate before being added to the higher-level indexing systems. Within
these systems, profiles are categorized into offender profiles, arrestee profiles, and other categories. For a more detailed
description of the system, see http://www.fbi.gov/hq/lab/html/codis1.htm.
9 United States v. Amerson, 483 F.3d 73, 76 (2d Cir. 2007) (quoting H.R. Rep. No. 106-900 (2000)).
10 See Kincade, 379 F.3d at 818; H.R. Rep. No. 106-900 at 27 (2000).
11 As of February 2009, the federal government and all states except Idaho, Kentucky, Nebraska, New Hampshire, and
Pennsylvania authorized DNA collection from people convicted of any felony. See National Conference of State
Legislatures, State Laws on DNA Data Banks: Qualifying Offenses, Others Who Must Provide Sample (Feb. 2009), at
http://www.ncsl.org/default.aspx?tabid=12737.
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the DNA Analysis Backlog Elimination Act 2000, as amended, authorizes compulsory collection
from individuals in federal custody, including those detained, arrested, or facing charges, and
from individuals on release, parole, or probation in the federal criminal justice system.12 Under
the federal law, if an individual refuses to cooperate, relevant officials “may use or authorize the
use of such means as are reasonably necessary to detain, restrain, and collect a DNA sample.”13
State laws vary, but nearly all states authorize compulsory DNA collection from people convicted
for specified crimes, and a small but growing number of states also authorize compulsory
collection from arrestees.14
Expansion of Statutory Authorities for DNA Collection and
Analysis
At the federal level, statutory authority for compulsory DNA collection has expanded relatively
rapidly. During the 1990s, a trio of federal laws created the logistical framework for DNA
collection, storage, and analysis. The DNA Identification Act of 1994 provided funding to law
enforcement agencies for DNA collection and created the FBI’s Combined DNA Index System to
facilitate the sharing of DNA information among law enforcement agencies.15 Next, the
Antiterrorism and Effective Death Penalty Act of 1996 authorized grants to states for developing
and upgrading DNA collection procedures,16 and the Crime Identification Technology Act of
1998 authorized additional funding for DNA analysis programs.17 The resulting framework
centers on the Combined DNA Index System; more than 170 law enforcement agencies
throughout the country participate in the system.18
In recent years, federal and state laws have expanded law enforcement authority for collecting
DNA in at least two ways. First, laws have increased the range of offenses which trigger authority
for collecting and analyzing DNA. In the federal context, the DNA Analysis Backlog Elimination
Act of 2000 limited compulsory extraction of DNA to people who had been convicted of a
“qualifying federal offense.”19 Under the original act, “qualifying federal offenses” included
limited but selected felonies, such as murder, kidnapping, and sexual exploitation.20 After
September 11, 2001, the USA PATRIOT Act expanded the “qualifying federal offense” definition
to include terrorism-related crimes.21 In 2004, the Justice for All Act further extended the
12 42 U.S.C. § 14135a.
13 Id. at § 14135a(a)(4)(A).
14 See National Conference of State Legislatures, State Laws on DNA Data Banks: Qualifying Offenses, Others Who
Must Provide Sample (Feb. 2009), at http://www.ncsl.org/default.aspx?tabid=12737 (indicating that as of 2008, 15
states had authorized DNA collection from arrestees).
15 P.L. 103-322, 108 Stat. 2065 (1994) (codified at 42 U.S.C. §§ 14131-14134).
16 P.L. 104-132, 110 Stat. 1214 (1996).
17 P.L. 105-251, 112 Stat. 1871 (1998).
18 See http://www.fbi.gov/hq/lab/codis/clickmap.htm.
19 42 U.S.C. § 14135a(a)(1)(B).
20 P.L. 106-546, § 3, 114 Stat. 2726, 2729-30 (2000).
21 P.L. 107-56, § 503, 115 Stat. 272, 364 (2001).
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definition to reach all crimes of violence, all sexual abuse crimes, and all felonies.22 Similarly,
almost all states now authorize collection of DNA from people convicted of any felony.23
Second, laws have authorized compulsory DNA collection from people who have been detained
or arrested but not convicted on criminal charges. The 109th Congress authorized the Attorney
General, in his discretion, to require collection from such individuals. Specifically, the DNA
Fingerprinting Act of 2005 authorized collection “from individuals who are arrested or from non-
U.S. persons who are detained under the authority of the United States.”24 The Adam Walsh Child
Protection and Safety Act of 2006 subsequently substituted “arrested, facing charges, or
convicted” for the word “arrested” in that authority.25 The U.S. Department of Justice
implemented the authorization in a final rule that took effect January 9, 2009.26 Mirroring the
statutory language, it requires U.S. agencies to collect DNA samples from “individuals who are
arrested, facing charges, or convicted, and from non-United States persons who are detained
under authority of the United States.”27 As mentioned, some states have likewise enacted laws
authorizing collection of arrestees’ DNA.28
Whereas the increase in the range of triggering offenses appears to be a natural outcome of
DNA’s success as a forensic tool, the expansion to collection from arrestees appears to be a more
legally significant step. Overall, it seems Congress’ goal for the expansion to arrestees and those
facing charges was to facilitate crime prevention through “the creation of a comprehensive, robust
database that will make it possible to catch serial rapists and murderers before they commit more
crimes.”29 In background material for its implementing rule, the Justice Department explains that
collection from arrestees will facilitate more effective law enforcement for at least two reasons:
(1) it will aid in crime prevention by ensuring that the government need not wait until a crime has
been committed before creating an individual’s DNA profile; and (2) it will allow federal
authorities to create DNA profiles for aliens detained in the United States, who might not
otherwise undergo judicial proceedings in U.S. courts.30
Expungement Provisions
Although Congress expanded statutory authority for DNA collection, it has also provided some
protection for arrestees when arrest does not result in conviction. In particular, federal law
mandates expungement of DNA samples upon an arrestee’s showing of discharge or acquittal.
22 P.L. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004) (codified at 42 U.S.C. § 14135a(a)(2)).
23 See National Conference of State Legislatures, State Laws on DNA Data Banks: Qualifying Offenses, Others Who
Must Provide Sample (Feb. 2009), at http://www.ncsl.org/default.aspx?tabid=12737.
24 DNA Fingerprint Act of 2005, Tit. X, P.L. 109-162, 119 Stat. 2960. 42 U.S.C. § 14135a(a)(1).
25 Adam Walsh Child Protection and Safety Act of 2006, sec. 155, P.L. 109-248, 120 Stat. 587 (2006) (codified at 42
U.S.C. § 14135a(a)(1)).
26 DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. at 74,932,
74,935.
27 28 C.F.R. § 28.12(b).
28 See, e.g., Kan. Stat. Ann. § 21-2511(e)(2) (authorizing DNA collection from individuals arrested for any felony or
certain other crimes); N.M. Stat. § 29-16-6(B) (authorizing collection of DNA samples from individuals arrested for
specific violent felonies); Va. Code Ann. § 19.2-310.2:1 (requiring collection of DNA samples from “arrested for the
commission or attempted commission of a violent felony”).
29 151 Cong. Rec. S13756 (daily ed. Dec. 16, 2005) (statement of Sen. Kyl).
30 DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. at 74,934.
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The FBI and relevant state agencies “shall promptly expunge” DNA information “from the index”
upon receipt of “a final court order establishing that such charge has been dismissed or has
resulted in an acquittal or that no charge was filed within the applicable time period.”31 Officials
must also expunge DNA data for convicts in cases where a conviction is overturned.32 These
provisions apply to DNA collected by state and local law enforcement officers, in addition to
DNA collected in the federal justice or detention systems.
Fourth Amendment Overview
The Fourth Amendment to the U.S. Constitution provides a right “of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.”33 Two
fundamental questions arise in every Fourth Amendment challenge. First, does the challenged
action constitute a search or seizure by federal or local government and thus trigger the Fourth
Amendment right?34 Second, if so, is the search or seizure “reasonable”?
Search or Seizure
Different tests trigger the Fourth Amendment right depending on whether a litigant challenges
government conduct as a seizure or as a search. Seizures involve interference with property
rights; a seizure of property occurs when government action “meaningfully interferes” with
possessory interests or freedom of movement.35
In contrast, searches interfere with personal privacy. Government action constitutes a search when
it intrudes upon a person’s “reasonable expectation of privacy.”36 A reasonable expectation of
privacy requires both that an “individual manifested a subjective expectation of privacy in the
searched object” and that “society is willing to recognize that expectation as reasonable.”37
In general, people have no reasonable expectation of privacy for physical characteristics they
“knowingly expos[e] to the public.”38 In evaluating whether people “knowingly expose”
identifying characteristics, the Supreme Court has sometimes distinguished the drawing of blood
and other internal fluids from the taking of fingerprints. At times, it has signaled that people lack
31 42 U.S.C. §14132(d).
32 Id. However, no provision requires expungement of DNA upon a convict’s completion of his or her sentence.
33 U.S. Const. amend. IV.
34 Courts have applied the Fourth Amendment to state and local government actions since 1961, when, in Mapp v.
Ohio, the Supreme Court interpreted the Fourteenth Amendment as having incorporated the Fourth Amendment to the
states. 367 U.S. 643, 655 (1961).
35 See United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J., concurring in result); Michigan v. Summers, 452
U.S. 692, 696 (1981).
36 Some justices and experts have noted the circularity of the combination of this definition and the general Fourth
Amendment “reasonableness” inquiry. See, e.g., Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring).
However, such criticisms have not yet caused the Court to reconsider its test, except perhaps for the narrow category of
interiors of homes, for which the Court has found a near-automatic reasonable expectation of privacy by virtue of
privacy in the home having “roots deep in the common law.” See Kyllo v. United States, 533 U.S. 27, 34 (2001).
37 Kyllo, 533 U.S. at 33 (citing California v. Ciraolo, 476 U.S. 207, 211 (1986)).
38 Katz v. United States, 389 U.S. 347, 351 (1967).
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a reasonable expectation of privacy in their fingerprints,39 but it has held that extraction of blood,
urine, and other fluids implicates an intrusion upon a reasonable expectation of privacy,
presumably because the former category is “knowingly exposed” to the public while the latter
category generally is not.40
Under modern Supreme Court precedent, a further complicating factor is that reasonable
expectation of privacy depends not only on the type of evidence gathered, but also on the status of
the person from whom it is gathered. The inquiry is not simply a yes-or-no determination, but
appears to include a continuum of privacy expectations. For example, in United States v. Knights,
the Court held that the “condition” of probation “significantly diminished” a probationer’s
reasonable expectation of privacy.41 This diminished privacy expectation did not completely
negate the probationer’s Fourth Amendment right; however, it affected the outcome under the
Court’s Fourth Amendment balancing test.42
“Reasonableness” Inquiry When the Fourth Amendment Applies
When government action constitutes a search or seizure, “reasonableness” is the “touchstone” of
constitutionality.43 However, courts apply different standards, in different circumstances, to
determine whether searches and seizures are reasonable. The Court’s Fourth Amendment analysis
falls into three general categories.
The first category involves traditional law enforcement activities, such as arrests or searching of
homes. To be reasonable, these activities require “probable cause,” which must be formalized by
a warrant unless a recognized warrant exception applies.44 Probable cause is “a fluid concept –
turning on the assessment of probabilities in particular factual contexts – not readily, or even
usefully, reduced to a neat set of legal rules,”45 yet it is considered the most stringent Fourth
Amendment standard. In the context of issuing warrants, probable cause requires an issuing
39 See, e.g., Davis v. Mississippi, 394 U.S. 721, 727 (1969) (“Fingerprinting involves none of the probing into an
individual’s private life and thoughts that marks an interrogation or search.”). Later, in Hayes v. Florida, the Supreme
Court seemed to suggest that fingerprinting does constitute a search, 470 U.S. 811, 814 (1985) (referring to
fingerprinting as less intrusive than other types of searches and seizures), a shift in keeping with the Court’s broader
trend toward classifying more activity as constituting a search and leaving the heart of the constitutional analysis for the
Fourth Amendment “reasonableness” inquiry. Thus, it appears that although the Court views the drawing of blood as a
greater intrusion than fingerprinting, both activities now qualify as searches.
40 See, e.g., Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (“We have long recognized that a
‘compelled intrusio[n] into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth
Amendment search” (quoting Schmerber v. California, 384 U.S. 757, 767-768 (1966)). This distinction contrasts with
the Supreme Court’s rejection of a blood-versus-fingerprints distinction in the context of the confrontation clause to the
Sixth Amendment of the U.S. Constitution, wherein the Court has held neither fingerprinting nor the taking of blood
are barred because they are both “real and physical” rather than “testimonial” evidence. See Pennsylvania v. Muniz,
496 U.S. 582, 591 (1990).
41 534 U.S. 112, 119-120 (2001).
42 Id.
43 Id. at 118.
44 See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (recognizing a warrant exception for arrest of an
individual who commits a crime in an officer’s presence, as long as the arrest is supported by probable cause).
45 Illinois v. Gates, 462 U.S. 213, 232 (1983).
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magistrate to make a “common sense” determination, based on specific evidence, whether there
exists a “fair probability” that, for example, an area contains contraband.46
The second category, introduced in the Supreme Court case Terry v. Ohio, involves situations in
which a limited intrusion satisfies Fourth Amendment strictures with a reasonableness standard
that is lower than probable cause.47 For example, in Terry, a police officer’s patting of the outside
of a man’s clothing to search for weapons required more than “inchoate and unparticularized
suspicion” but was justified by “specific reasonable inferences” that the man might have a
weapon.48 In such situations, courts permit searches justified by “reasonable suspicion,” which is
a particularized suspicion prompted by somewhat less specific evidence than probable cause
requires.49
The third category includes “exempted area,” “administrative,” “special needs,” and other
“suspicionless” searches. Examples include routine inventory searches, border searches,
roadblocks, and drug testing. In these circumstances, courts apply a “general approach to the
Fourth Amendment” – also called the “general balancing,” “general reasonableness,” or “totality-
of-the circumstances” test – to determine reasonableness “by assessing, on the one hand, the
degree to which [a search or seizure] intrudes upon an individual’s privacy and, on the other, the
degree to which it is needed for the promotion of legitimate governmental interests.”50 Although
the Supreme Court has expanded the scope of application for this test, the approach historically
applied only when a search or seizure satisfied parameters for one of several narrow categories. In
particular, it applied where a routine, administrative purpose justified regular searches; where a
long-recognized exception existed, such as for border searches; or where a “special nee[d],
beyond the normal need for law enforcement, [made] the warrant and probable cause
requirements impracticable.”51
In the context of law enforcement’s collection of DNA from prisoners, parolees, and others
subject to law enforcement supervision, questions remain regarding when a special need, distinct
from law enforcement interests, must exist before a court may apply a general reasonableness
standard. Although the special needs test arose in the context of drug testing, the Supreme Court
has held that probation and other post-conviction punishment regimes qualified as special needs
with purposes distinct from law enforcement. For example, in Griffin v. Wisconsin, the Court held
that a “state’s operation of a probation system, like its operation of a school, government office or
prison, or its supervision of a regulated industry ... presents ‘special needs’ beyond law
enforcement.”52 As discussed below, later Supreme Court cases seem to suggest that a defendant’s
post-conviction status, alone, might justify a court’s direct application of a general reasonableness
test to DNA collection, without any finding of a special need.
46 Id. at 238.
47 392 U.S. 1, 7 (1968).
48 Id. at 21-22, 27.
49 Alabama v. White, 496 U.S. 325, 330 (1990) (“[r]easonable suspicion is a less demanding standard than probable
cause”).
50 Samson v. California, 547 U.S. 843, 848 (2006).
51 Griffin v. Wisconsin, 483 U.S. 868, 873 (1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun,
J., concurring)).
52 Id. at 873-74.
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Diminishment of Privacy Expectations Under Supreme Court
Precedent
Since 2000, the Supreme Court has twice applied a general reasonableness test in Fourth
Amendment cases involving people serving post-conviction punishments – specifically, in cases
involving a probationer and a parolee – without first finding special needs justifying the
government action. In both cases, the Court’s legal basis for directly applying the general
balancing approach was the reduced expectation of privacy to which each defendant was entitled
by virtue of his post-conviction status. In addition to providing a justification for rejection of the
special needs test, this same diminishment of defendants’ privacy expectations also favored the
government in the Court’s application of the general balancing test.
In United States v. Knights, a 2001 case, a California court had sentenced Mark Knights to
probation for a drug offense.53 One condition of his probation was that his “person, property,
place of residence,” etc., were subject to search “with or without a search warrant.”54 After
finding some evidence that appeared to link him with a fire at a local telecommunications vault, a
police detective searched Knights’ home without a warrant.55 Emphasizing the curtailment of
privacy rights that correspond with probation and other post-conviction punishment regimes, the
Court evaluated the search under the general balancing test, without first identifying an
administrative purpose or special needs justification.56 In addition, Knights’ diminished
expectation of privacy affected the outcome under the Court’s general Fourth Amendment
balancing test. Noting that “Knights’ status as a probationer subject to a search condition informs
both sides of that balance,” the Court easily upheld the officer’s search based on reasonable
suspicion.57
In Samson v. California, a 2006 case, the Court extended Knights to uphold a search of a
parolee’s pockets, for the first time directly applying the general reasonableness test to a search
justified only on the basis of the petitioner’s status as a parolee, rather than on any particularized
suspicion.58 As in Knights, the Samson Court explicitly rejected arguments that a special needs
analysis was required; instead, finding that the petitioner’s post-conviction status diminished his
privacy rights, the Court again directly applied a “general Fourth Amendment approach.”59 In
53 534 U.S. 112, 114 (2001).
54 Id.
55 Id. at 115.
56 Id. at 119-20. (noting that “just as other punishments for criminal convictions curtail an offender’s freedoms, a court
granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-
abiding citizens” and concluding that “the probation condition thus significantly diminished Knight’s reasonable
expectation of privacy”).
57 Id. at 119, 121-22 (after discussing the interests on both sides of the general reasonableness test, holding “that the
balance of these considerations requires no more than reasonable suspicion to conduct a search of petitioner’s house”).
58 547 U.S. 843 (2006).
59 Id. at 848. In parts, the Knights opinion appeared to suggest that conditions explicitly imposed upon the probationer,
rather than the probationer’s status itself, created the diminished privacy expectation. However, in a footnote, the
Knights court signaled its support for the rationale, later adopted in Samson, that post-conviction status itself
diminishes a probationer’s or a parolee’s expectation of privacy. Specifically, the Knights Court cited the Wisconsin
Supreme Court’s holding in Griffin that “‘probation diminishes a probationer’s reasonable expectation of privacy – so
that a probation officer may, consistent with the Fourth Amendment, search a probationer’s home without a warrant,
and with only ‘reasonable grounds’ (not probable cause) to believe that contraband is present.” Knights, 534 U.S. at
118 n.3 (citing Griffin, 483 U.S. at 872.).
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addition, as in Knights, the Samson court held that a parolee’s diminished privacy right affected
the outcome of the general balancing test.60
It is unclear what other categories of people might be subject to a reduced expectation of privacy
by virtue of their status. It appears from Supreme Court dicta that at least a lesser reduction in
privacy rights would apply to those in pre-trial detention versus people serving sentences after
conviction. In Knights and Samson, the Supreme Court referred to parolees and probationers as
being along a “‘continuum’ of state-imposed punishments.”61 Furthermore, in Samson, the Court
held that a parolee lacked “an expectation of privacy that society would recognize as legitimate,”
because searches were a condition of parole, which was a “‘an established variation on
imprisonment.’”62 Lower federal courts have interpreted these and other Supreme Court decisions
as suggesting that prisoners’ privacy expectations are the most diminished; parolees have the next
lowest diminishment in privacy expectations, followed by people on supervised release and
probationers.63 The few U.S. district court cases addressing DNA collection from persons
awaiting trial, discussed infra, have reached different conclusions regarding the extent to which a
person’s pre-trial detention diminishes his or her reasonable expectation of privacy.
Case Law on DNA Collection
Courts have uniformly held that compulsory DNA collection and analysis constitutes a search,
and thus triggers Fourth Amendment rights.64 Although some courts have signaled that DNA
collection or storage might also constitute a seizure, courts have generally not addressed that
question.65 Thus, the question in cases brought is whether the collection of DNA satisfies the
Fourth Amendment reasonableness test.
Reasonableness of Post-Conviction Collection
Prior to the expansion of DNA collection authority to arrestees, nearly all courts that reviewed
laws authorizing compulsory DNA collection upheld the laws against Fourth Amendment
challenges.66 Although the U.S. Supreme Court has never accepted a DNA collection case,67 U.S.
60 Samson, 547 U.S. at 850-52.
61 Samson, 547 U.S. at 850 (quoting Knights, 534 U.S. at 119).
62 See Samson, 547 U.S. at 852 (quoting Morrissey v. Brewer, 408 U.S. 471, 477 (1972)).
63 See, e.g., Wilson, 517 F.3d at 426-27 (“a parolee ... has less diminished privacy rights than a prisoner”).
64 See, e.g., United States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007) (“It is settled law that DNA indexing statutes,
because they authorize both a physical intrusion to obtain a tissue sample and a chemical analysis to obtain private
physiological information about a person, are subject to the strictures of the Fourth Amendment.”).
65 See, e.g., United States v. Kincade, 345 F.3d 1095, 1100 n.13 (9th Cir. 2003) (“Although the taking of blood may
properly be characterized as a Fourth Amendment seizure, because it interferes with [the appellant’s] ‘possessory
interest in his bodily fluids,’ for present purposes we consider only the search, and note that the ‘privacy expectations
protected by this [the seizure] are adequately taken into account by our conclusion that such intrusions are searches”)
(quoting Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602, 617 n.4 (1989)).
66 One exception is the panel decision of the U.S. Court of Appeals for the Ninth Circuit in United States v. Kincade,
which was later overturned in an en banc decision. 345 F.3d 1095 (9th Cir. 2003), vac’d and rehearing en banc granted,
354 F.3d 1000 (9th Cir. 2003).
67 The Supreme Court has addressed the separate issue of defendants’ post-conviction access to DNA evidence. See,
e.g., District Attorney’s Office for the Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009).
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Courts of Appeals for the First, Second, Sixth, Seventh, Eight, Ninth, Tenth, and Eleventh
Circuits upheld the 2004 version of the federal DNA collection law, which authorized collection
and analysis of DNA from people convicted of any felony, certain sexual crimes, and crimes of
violence.68 Likewise, federal courts of appeals have upheld numerous state DNA collection
laws.69
Courts have relied on different legal tests in these cases.70 While most courts have directly applied
a general reasonableness approach, some courts have first evaluated government actions under
the special needs test.71 The majority of the federal courts of appeals have interpreted Samson as
affirmatively requiring courts to apply the general reasonableness test, without a special needs
prerequisite, at least as applied to prisoners or other individuals with post-conviction status. For
example, in Wilson v. Collins, the Court of Appeals for the Sixth Circuit interpreted Samson as
requiring direct application of the general balancing test in a case involving a prisoner.72
Likewise, in United States v. Weikert, a case involving compulsory collection of DNA from a man
on supervised release, the Court of Appeals for the First Circuit held that, under Samson, a
general reasonableness test applied in DNA collections cases.73
In contrast, some federal courts of appeals have held that Samson did not affect their use of the
special needs test in suits challenging DNA collection statutes. For example, the Court of Appeals
for the Second Circuit declined to apply Samson in United States v. Amerson, a case upholding
compulsory DNA collection from two individuals on probation, one for larceny and one for wire
fraud.74 The court interpreted Samson very narrowly, as applying only in contexts involving a
“highly diminished” expectation of privacy.75 Similarly, although it directly applied the general
68 United States v. Weikert, 504 F.3d 1 (1st Cir. 2007); United States v. Amerson, 483 F.3d 73 (2d Cir. 2007); Wilson v.
Collins, 517 F.3d 421 (6th Cir. 2006); United States v. Hook, 471 F.3d 766 (7th Cir. 2006); United States v. Kraklio, 451
F.3d 922 (8th Cir. 2006); United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007); United States v. Banks, 490 F.3d 1178
(10th Cir. 2007); United States v. Castillo-Lagos, 147 Fed. App’x. 71 (11th Cir. 2005).
69 Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005) (upholding the Georgia statute); Green v. Berge, 354 F.3d 675 (7th
Cir. 2004) (upholding the Wisconsin statute); Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) (upholding the
Oklahoma statute); Schlicher v. Peters, 103 F.3d 940 (10th Cir. 1996) (upholding the Kansas statute); Boling v. Romer,
101 F.3d 1336 (10th Cir. 1996) (upholding the Colorado statute); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992)
(upholding the Virginia statute).
70 See United States v. Kraklio, 451 F.3d 922, 924 (8th Cir. 2006) (“The only disagreement among the circuits is what
analytical approach to use in upholding the [DNA collection] statutes.”).
71 Contrast United States v. Weikert, 504 F.3d 1, 7 (1st Cir. Aug. 9, 2007); United States v. Banks, 490 F.3d 1178, 1183
(10th Cir. 2007); United States v. Kraklio, 451 F.3d 922, 924 (8th Cir. 2006); United States v. Castillo-Lagos, 147 Fed.
App’x 71 (11th Cir. 2005) with United States v. Amerson, 483 F.3d 73, 78 (2d Cir. 2007); United States v. Hook, 471
F.3d 766, 772-74 (7th Cir. 2006). The Sixth Circuit has upheld the federal DNA collection law under both tests. United
States v. Conley, 453 F.3d 674, 677-81 (6th Cir. 2006).
72 517 F.3d 421, 426 (6th Cir. 2008).
73 504 F.3d 1, 3 (1st Cir. 2007) (“We interpret the Supreme Court’s decision in Samson v. California to require that we
join the majority of the circuits in applying a ‘totality of the circumstances’ approach to the issues in this case, rather
than the ‘special needs’ analysis used by the minority of circuits” (citations omitted)). Similarly, some state courts have
interpreted Samson as applicable in compulsory DNA collection cases. For example, despite continuing to apply the
special needs test in DNA cases, the Supreme Court of New Jersey recognized that “the most recent United States
Supreme Court decision in Samson strongly suggests that the balancing test, which is an easier test for the State to
satisfy, should apply to a Fourth Amendment analysis.” State v. O’Hagen, 189 N.J. 140, 158 (2007).
74 483 F.3d at 73, 79 (2d Cir. 2007).
75 Id. (“while after Samson it can no longer be said that ‘the Supreme Court has never applied a general balancing test
to a suspicionless-search regime,’ nothing in Samson suggests that a general balancing test should replace special needs
as the primary mode of analysis of suspicionless searches outside the context of the highly diminished expectation of
privacy presented in Samson”) (quoting its previous opinion, Nicholas v. Goord, 430 F.3d 652, 666 (2d Cir. 2005)).
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reasonableness test in Wilson, the Sixth Circuit suggested in that case that Samson might not
apply in a case involving a person who was not a prisoner.76
The reading of Samson as limited to cases involving a significantly diminished expectation of
privacy appears to comport with the Supreme Court’s emphasis in Knights and Samson on the
diminished privacy rights that stem from a petitioner’s post-conviction status. In Samson, the
Court framed the question in the case as “whether a condition of release can so diminish or
eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless search by a
law enforcement officer would not offend the Fourth Amendment.”77
In evaluating post-conviction DNA collection, whether courts apply the special needs test before
applying a general reasonableness test in DNA cases has had little or no practical import, because
courts have consistently upheld the collection regardless of the standard they apply. Thus, courts
have signaled that a change in analytic tools would not affect the ultimate determination of
constitutionality in DNA collection cases involving convicted criminals.78 However, courts
addressing collection in the post-conviction context have made clear that their holdings do not
apply to collection from arrestees.79
Reasonableness As Applied to Arrestees
As mentioned, to date, only a handful of state80 and federal judicial decisions address compulsory
collection of DNA from persons awaiting a criminal trial. Two federal district courts have issued
opinions on the issue. In United States v. Pool, the U.S. District Court for the Eastern District of
California upheld such collection.81 In United States v. Mitchell, the U.S. District Court for the
Western District of Pennsylvania reached the opposite result.82
In both U.S. district court cases, the government requested a DNA sample after the defendant was
arrested pursuant to a criminal indictment but before trial.83 Both courts applied the general
76 Wilson, 517 F.3d at 426 (noting that cases involving petitioners on supervised release had declined to follow
Samson).
77 547 U.S. at 847.
78 See, e.g., Wilson, 517 F.3d at 427 n. 4 (“Even if we were to apply the more stringent special-needs test, there is no
reason to believe the ultimate result would be different.”).
79 See, e.g., United States v. Kriesel, 508 F.3d 941, 948-49 (9th Cir. 2007) (“We emphasize that our ruling today does
not cover DNA collection from arrestees or non-citizens detained in the custody of the United States, who are required
to submit to DNA collection by the 2006 version of the DNA Act”).
80 This report focuses on federal court decisions, but several state courts have also reviewed the collection of DNA
from arrestees. For example, in Anderson v. Virginia, 650 S.E.2d 702 (Vir. 2006), the Virginia Supreme Court upheld
Virginia’s statute authorizing DNA collection from arrestees. It analogized the collection of DNA samples to the
routine taking of fingerprints, emphasizing that collecting such samples necessitated only a minimal privacy intrusion.
Id. at 706. It rejected the defendant’s assertion that the special needs test applied. Instead, it applied the general
balancing test and concluded that the “same rationale” tipped the balance in the government’s favor as applied to
collection of DNA from convicted felons. Id. (“In the case of convicted felons who are in custody of the
Commonwealth ... the minor intrusion caused by the taking of a [DNA] sample is outweighed by Virginia’s interest ...
in determining inmates’ ‘identification characteristics’” (quoting Jones v. Murray, 962 F.2d 302, 307 (Va. 1992)).
81 645 F. Supp.2d 903 (E.D.Cal. 2009).
82 2009 U.S. Dist. LEXIS 103575 (2009).
83 In Pool, the defendant was granted pre-trial release. For that reason, a provision of the Bail Reform Act, 18 U.S.C. §
3142(b), which requires DNA collection as a condition of pre-trial release, provided a supplementary basis of statutory
authority.
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balancing test to determine whether such collection was reasonable under the Fourth
Amendment.84
Their divergent conclusions can be explained, in part, by the courts’ differing characterizations of
DNA collection on both sides of the general balancing test. On the privacy intrusion side, the
Pool court viewed a DNA sample as no more intrusive than fingerprinting.85 In contrast, the
Mitchell court noted that DNA has the potential to reveal a host of private genetic information and
rejected the analogy to fingerprinting as “pure folly.”86
The courts’ different views of DNA’s role also impacted their conclusions on the government
interest side of the balancing test. The Pool court viewed the government’s interest in collecting
DNA as equally legitimate as fingerprinting and other identification tools, in which governments
have been held to have a sufficient interest.87 In contrast, because it viewed DNA collection as
presenting a far greater privacy intrusion than fingerprinting, the Mitchell court held that although
the government has a legitimate interest in identifying suspects, that interest is one “that can be
satisfied with a fingerprint and photograph” rather than with the more intrusive DNA sample.88
Another explanation for the different outcomes is the courts’ different views of the implication of
an indictment for a defendant’s reasonable expectation of privacy. The Pool court viewed a grand
jury’s finding of probable cause at an indictment as a “watershed event,” pursuant to which it is
constitutional to detain a defendant or otherwise restrict a defendant’s liberty.89 Thus, the Pool
court found that a post-indictment arrestee has a substantially diminished reasonable expectation
of privacy. However, it expressly limited its holding to cases in which DNA collection occurs
after an indictment.90
Criticizing the Pool opinion, the Mitchell court stated that it is “loath to elevate a finding of
probable cause” – i.e., the standard which must be met for an indictment – to match the higher,
“reasonable doubt” standard required for a conviction.91 Therefore, it “strongly disagree[d] with
the court’s analysis in Pool” regarding the extent to which arrest and indictment diminish a
person’s reasonable expectation of privacy.92
84 Both courts discussed but declined to apply the special needs test. They noted that a minority of federal courts of
appeals have applied the special needs test in DNA collection cases and expressed doubt that the DNA collection
statutes served a special need beyond law enforcement purposes. See, e.g., Mitchell, 2009 U.S. Dist. LEXIS 103575 at
*18 (“The legislative intent fails to suggest that the enactment of the DNA collection statutes was based upon any
special need outside of law enforcement purposes”).
85 Pool, 645 F. Supp.2d at 911.
86 Mitchell, 2009 U.S. Dist. LEXIS 103575 at *28.
87 Pool, 645 F. Supp.2d at 911.
88 Mitchell, 2009 U.S. Dist. LEXIS 103575 at *31.
89 Pool, 645 F. Supp.2d at 909.
90 Pool, 645 F. Supp.2d at 905 (limiting its holding to cases where collection occurs “after a judicial or grand jury
determination of probable cause has been made for felony criminal charges against a defendant”).
91 Mitchell, 2009 U.S. Dist. LEXIS 103575 at *23.
92 Id.
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Issues Courts are Likely to Consider in Future Cases
Courts will likely wrestle with the questions raised by the divergent Pool and Marshall decisions
in future cases involving pre-conviction DNA collection. Several additional issues are likely to
affect courts’ analyses in such cases, and might also impact the existing judicial consensus
regarding the constitutionality of DNA collection from persons who have been convicted of a
crime. In particular, the emerging science regarding biological purposes for junk DNA and the
FBI’s long-term storage of DNA profiles are likely to play a role in future analyses.
New Research on Junk DNA
Despite the “rapid pace of technological development in the area of DNA analysis,”93 much of
DNA’s scientific value remains a mystery. As mentioned, FBI analysts rely on junk DNA, thought
not to reveal sensitive medical or biological information. Partly for that reason, proponents of
expansive DNA collection argue that any privacy intrusion resulting from DNA storage or
analysis is minimal at most. For example, when he introduced the amendment that authorizes
collection and analysis of DNA from arrestees in the federal system, Senator Kyl emphasized that
storage of DNA samples would not intrude upon individuals’ privacy rights, stating that “the
sample of DNA that is kept ... is what is called ‘junk DNA’ – it is impossible to determine
anything medically sensitive from this DNA.”94 Likewise, courts have assumed that DNA
analysis and storage involves only a minimal privacy intrusion.
However, language in some opinions suggest that this assumption might change if scientists
discover new uses for junk DNA. For example, the U.S. Court of Appeals for the First Circuit has
suggested that “discovery of new uses for ‘junk DNA’ would require a reevaluation of the [Fourth
Amendment] reasonableness balance.”95
Scientific research on junk DNA is still emerging, and some research suggests that junk DNA has
more biological value than previously assumed. For example, in October 2008, University of
Iowa researchers released study findings showing that junk DNA has the potential to “evolve into
exons, which are the building blocks for protein-coding genes.”96 Other scientists have similarly
argued that there might be “gems among the junk” in DNA.97 Hence, a remaining question is
whether use of junk DNA will continue to offer superficial identifying information or whether it
will reveal more detailed medical or biological characteristics.
Storage of DNA Profiles After Punishment Ends
A final issue that might arise in future DNA cases is the constitutionality of storing convicts’
DNA profiles after their sentences have ended. As mentioned, federal law requires the FBI to
93 United States v. Weikert, 504 F.3d 1, 3 (1st Cir. 2007).
94 151 Cong. Rec. S13757 (daily ed. Dec. 16, 2005) (statement of Sen. Kyl).
95 United States v. Stewart, 532 F.3d 32, 36 (1st Cir. 2008).
96 Lin L, Shen S, Tye A, Cai JJ, Jiang P, et al. Diverse Splicing Patterns of Exonized Alu Elements in Human Tissues.
PLoS Genet 4(10): e1000225. doi:10.1371/journal.pgen.1000225 (2008), at http://www.plos.org/press/plge-04-10-17-
xing.pdf.
97 W. Wayt Gibbs. The Unseen Genome: Gems Among the Junk. Sci. Am. 29 (Nov. 2003).
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expunge DNA profiles for people who receive acquittals or whose convictions are overturned.98
However, the expungement provisions do not address storage of DNA from people who have
been convicted but have successfully completed their sentences. Rather, as the Ninth Circuit
Court of Appeals noted in United States v. Kriesel, “once they have [a person’s] DNA, police at
any level of government with a general criminal investigative interest ... can tap into that DNA
without any consent, suspicion, or warrant, long after his period of supervised release ends.”99
Defendants have generally not raised this issue, but it might become a more prevalent argument
since laws have expanded collection authority to reach people convicted for relatively minor
charges.
Some courts have signaled that storage after sentences are completed could alter the Fourth
Amendment analysis. For example, in an opinion upholding collection of DNA from a person on
supervised release, the U.S. Court of Appeals for the First Circuit warned that its opinion had an
“important limitation.” Namely, because the petitioner was “on supervised release and will
remain so until 2009, [the court did] not resolve the question of whether it is also constitutional to
retain the DNA profile in the database after he is no longer on supervised release.”100 Courts
might be receptive to arguments regarding the long-term storage of DNA as an unconstitutional
search, although some courts have upheld ongoing storage of fingerprints and other evidence.101
The resolution of that question might depend in part on whether completion of a sentence is
viewed as restoring a person’s reasonable expectation of privacy.
Conclusion
Although nearly all courts that have addressed the issue have upheld the compulsory collection of
DNA from persons who have been convicted, no judicial consensus has yet emerged regarding
the constitutionality of such collection from persons who have been arrested or are facing charges
prior to a criminal trial. The two U.S. district court cases addressing pre-conviction DNA
collection illustrate that outcomes in future cases involving arrestees may depend on courts’
resolution of at least two key issues, namely: (1) what, if any, distinction exists between the
reasonable expectation of privacy of an arrestee and a convict; and (2) the degree of privacy
intrusion perceived as a result of a DNA sample. The latter question may turn on courts’ framing
of the role of DNA collection – i.e., whether it is analogous to the long-upheld practice of
fingerprinting or whether it represents a greater privacy intrusion.
Existing expungement provisions might also become a factor in future challenges to pre-
conviction DNA collection. The government might argue that requirements that DNA samples be
expunged once an arrestee is discharged or acquitted offset the degree of privacy intrusion caused
by such samples. To date, some federal courts have made note of the expungement provisions,102
but they generally have not addressed the effect of expungement requirements in Fourth
Amendment analyses. Courts may be more likely to do so in future cases brought by arrestees.
98 42 U.S.C. §14132(d).
99 508 F.3d 941, 952 (9th Cir. 2007).
100 Weikert, 504 F.3d at 2.
101 See, e.g., Stevenson v. United States, 380 F.2d 590 (D.C. Cir.), cert. denied, 389 U.S. 962 (1967) (holding that a
defendant had no constitutional right to the expungement of his mugshots and fingerprints after his conviction was set
aside).
102 See, e.g., United States v. Sczubelek, 402 F.3d 175, 187 (3d. Cir. 2005), cert. denied, 548 U.S. 919 (2006).
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Author Contact Information
Anna C. Henning
Legislative Attorney
ahenning@crs.loc.gov, 7-4067
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