A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases

66 Pages Posted: 22 Apr 2012 Last revised: 3 Apr 2015

See all articles by David H. Kaye

David H. Kaye

PSU - Penn State Law (University Park); ASU - College of Law & School of Life Sciences

Date Written: April 20, 2012


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.

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

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: https://ssrn.com/abstract=2043259

David H. Kaye (Contact Author)

PSU - Penn State Law (University Park)

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United States

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ASU - College of Law & School of Life Sciences ( email )

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