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

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.

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