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License, Registration, Cheek Swab: DNA Testing and the Divided Court

39 Pages Posted: 29 Sep 2013 Last revised: 3 Apr 2015

Erin Murphy

New York University School of Law

Date Written: September 16, 2013

Abstract

Maryland v. King looks on its face like just another Fourth Amendment dispute — with civil libertarians on one side and law enforcement on the other — and garnered no special attention. But King is no ordinary Fourth Amendment case. At first glance, King simply upheld the Fourth Amendment constitutionality of a state statute authorizing the collection of DNA from arrestees. But the opinion represents a watershed moment in the evolution of Fourth Amendment doctrine and an important signal for the future of biotechnologies and policing. This Comment places King into context from three different vantage points, each one step removed. First, this Comment reads between the lines of the majority opinion, in light of the greater constellation of facts and claims placed before the Court, to underscore the significance of what was not said about the constitutionality of arrestee DNA collection. It next considers King as it exemplifies the judicial response to forensic DNA typing more generally, and imagines its precedential value in future biometric cases. Finally, the Comment closes by situating King in the broader landscape of the Court’s recent Fourth Amendment jurisprudence and analyzing its insights for the evolution of the field as a whole.

Keywords: DNA, Criminal Justice, Criminal Procedure, Biotechnology, Fourth Amendment

Suggested Citation

Murphy, Erin, License, Registration, Cheek Swab: DNA Testing and the Divided Court (September 16, 2013). Harvard Law Review, Vol. 127, 2013; NYU School of Law, Public Law Research Paper No. 14-01. Available at SSRN: https://ssrn.com/abstract=2332271

Erin Elizabeth Murphy (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States
212-998-6672 (Phone)

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