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Summary:
Despite relying on different legal standards, courts have generally upheld laws authorizing law enforcements compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment of the U.S. Constitution. However, several developments might call this judicial consensus into question. First, whereas prior laws authorized compelled extraction of DNA samples only from people who had received a criminal conviction, new state and federal laws have expanded law enforcements DNA collection authority to include people who have been arrested or detained but not convicted on criminal charges. On the federal level, the U.S. Department of Justice implemented this expanded authority with a final rule that took effect January 9, 2009. In addition, several states now require DNA samples from arrestees. This expansion is likely to alter the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent. Second, emerging scientific research suggests that the type of DNA used in forensic analysis might implicate a greater privacy intrusion than courts had previously assumed. Federal Bureau of Investigation (FBI) analysts derive DNA profiles from so-called junk DNA, which is non-genic DNA, because it is thought to lack both a biological purpose and indicators of sensitive medical characteristics. However, as new studies call this assumption into question, the privacy intrusion caused by DNA analysis might weigh more heavily against the government in Fourth Amendment decisions. Finally, most courts have yet to review the constitutionality of storing convicts DNA profiles beyond the time of sentence completion. Especially as law enforcement officers collect DNA samples from people convicted for crimes with relatively short sentences, defendants are likely to challenge ongoing DNA storage under the Fourth Amendment. With these developments, it is possible that future DNA collection cases might raise graver Fourth Amendment privacy concerns than previous cases. This change might lead courts to apply a more stringent legal standard or to find that the intrusion upon petitioners privacy rights outweighs governmental interests in the general Fourth Amendment balancing test. However, statutory protections, such as the existing federal provision requiring expungement of DNA evidence after an arrestees acquittal, might safeguard the government against a finding that DNA collection or analysis constitutes an unreasonable search or seizure under the Fourth Amendment. This report surveys existing case law and provides a constitutional analysis of these issues.
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