Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees

Abstract:     
Several states and now the federal government authorize the collection of DNA from individuals arrested for violations of certain criminal laws and the inclusion in DNA databases of the identifying DNA profiles. In an article in the 'Journal of Law, Medicine, and Ethics', Professor Tracey Maclin concludes that an objective analysis . . . indicates that the statutes should be declared unconstitutional but predicts that the Supreme Court will resort to a 'totality' or 'general reasonableness' model [which] is a standardless formula that permits a majority of the Court to do what it pleases without having to justify its result or reasoning under traditional Fourth Amendment doctrine.

In response, this article describes a principled basis for permitting the government to use some systems of warrantless DNA sampling both before and after conviction. The approach it advocates would permit DNA collection and analysis to the extent that it is minimally physically invasive and is confined strictly to identifying features. To provide a coherent approach to such data gathering, the article proposes a limited biometric identification exception to the warrant and probable cause requirements. Including such surveillance practices as searches within the meaning of the Fourth Amendment and then considering whether and when such safeguards as a judicial warrant should be required would represent an advance over existing doctrine.

Keywords: DNA evidence, databases, surveillance, privacy, criminal procedure, Fourth Amendment, search and seizure, biometrics

Accepted Paper Series