Abstract

http://ssrn.com/abstract=2261499
 


 



Suspicionless DNA Collection from Arrestees Violates the Fourth Amendment, But Easier Expunction of DNA Records Can Help Mitigate the Harm


Catherine A. Burke


George Mason University School of Law

January 9, 2013


Abstract:     
Suspicionless DNA collection from pre-conviction arrestees should be treated as a violation of the Fourth Amendment when it is conducted without a valid search warrant. The predominant policy justifications for that DNA collection (1) as a crime-fighting tool and/or (2) a modern identification tool, like high-tech versions of fingerprints, are not compelling enough to justify treating the process as comporting with the Fourth Amendment. Arrestees do not have the same low expectation of privacy as prisoners or convicts, and treating them as if they do violates their legal presumption of innocence. The public interest in fighting crime and identifying arrestees also fits within the ordinary role of law enforcement, meaning that those activities do not qualify for the "special needs" exception to the individualized suspicion required for most Fourth Amendment searches and seizures.

However, since the Supreme Court upheld suspicionless arrestee DNA collection, analysis, and aggregation in a nationwide DNA database (in Maryland v. King, 133 S. Ct. 1958 (2013)), participating states should adopt measures requiring automatic expunction of the DNA records of any arrestees who are not convicted within a reasonable amount of time from when they were arrested for the crime that led to the collection of their DNA.

Number of Pages in PDF File: 43

Keywords: DNA, arrestee, pre-conviction, buccal swab, warrant, expunge, expunction, DNA fingerprint, CODIS, allele, junk DNA, Maryland v. King, DNA dragnet

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Date posted: May 7, 2013 ; Last revised: June 22, 2013

Suggested Citation

Burke, Catherine A., Suspicionless DNA Collection from Arrestees Violates the Fourth Amendment, But Easier Expunction of DNA Records Can Help Mitigate the Harm (January 9, 2013). Available at SSRN: http://ssrn.com/abstract=2261499 or http://dx.doi.org/10.2139/ssrn.2261499

Contact Information

Catherine A. Burke (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
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