Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?

Abstract

An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex offenses, and examines whether these laws are consistent with the Fourth Amendment's "special needs" doctrine as outlined by several Supreme Court rulings.

The thesis of the article is that forcibly obtaining DNA from an arrestee violates the Fourth Amendment. There is little doubt these intrusions are searches under the Fourth Amendment. Moreover, I argue that this type of search cannot be upheld under the Supreme Court's special needs cases because obtaining a DNA sample is directly designed to promote the state's interest in solving crimes.

Keywords: Fourth Amendment, Special Needs Search, forensic DNA technology, DNA testing, California's Proposition 69, special needs doctrine

JEL Classification: K14, K40, K42