Abstract

http://ssrn.com/abstract=2043259
 


 



A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases


David H. Kaye


Penn State Law

April 20, 2012

University of Pennsylvania Journal of Constitutional Law, Vol. 15, No. 4, pp. 1095-1160, April 2013
The Pennsylvania State University Legal Studies Research Paper No. 7-2012

Abstract:     
Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for “special needs” or “administrative search” cases, for defining new exceptions to the warrant requirement of the Fourth Amendment, or for applying fact-intensive standards such as probable cause, reasonable suspicion, or excessive force. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting.

Number of Pages in PDF File: 66

Keywords: DNA databases, biometrics, fingerprints, privacy, fourth amendment, search and seizure, special needs

Accepted Paper Series


Download This Paper

Date posted: April 22, 2012 ; Last revised: October 16, 2013

Suggested Citation

Kaye, David H., A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases (April 20, 2012). University of Pennsylvania Journal of Constitutional Law, Vol. 15, No. 4, pp. 1095-1160, April 2013; The Pennsylvania State University Legal Studies Research Paper No. 7-2012. Available at SSRN: http://ssrn.com/abstract=2043259

Contact Information

David H. Kaye (Contact Author)
Penn State Law ( email )
Lewis Katz Building
University Park, PA 16802
United States
814 865-8974 (Phone)
HOME PAGE: http://law.psu.edu/faculty/resident_faculty/kaye
Feedback to SSRN


Paper statistics
Abstract Views: 2,016
Downloads: 350
Download Rank: 47,545
People who downloaded this paper also downloaded:
1. On the 'Considered Analysis' of Collecting DNA Before Conviction
By David Kaye

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.375 seconds