Compulsory DNA Collection: A Fourth Amendment Analysis
January 23, 2009 - R40077
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 ...