DNA on Arrest: The Score is Tied

Twelve years ago, Louisiana adopted a law mandating that “[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.” Today, the movement to acquire DNA from individuals not convicted of a crime and to check it against state and national databases of DNA profiles from unsolved crimes is snowballing. There now are 21 states with similar laws. In this year alone, seven states — a full one-third of the total — enacted such laws. (Williams 2009).

These laws have had a placid childhood, with surprisingly few challenges to their constitutionality. This period of calm is coming to an end, as conflicting opinions on the reasonableness of these searches under the Fourth Amendment emerge. Within the next few years, it seems likely that, as Kansas State Representative Pat Colloton (R), who authored the bill that initiated her state’s DNA sampling program predicted, “this issue will go to the United States Supreme Court.” (Gramlich 2006).

This posting presents a scoreboard on the litigation and scholarly commentary to date. It is based on preliminary research. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones arguing that convicted-offenders databases are unconstitutional. These authors would reach the same conclusion for a database that includes arrestees, but since the lower courts have resoundingly rejected their analyses, little would be gained by keeping track of them here.

The tables are descriptive rather than critical. They simply make the point that as yet there is no consensus on the constitutionality of taking DNA samples during a custodial arrest with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database). Later, I shall be commenting on some of the more superficial, if not silly, arguments that are surfacing in the pending cases.

Table 1. Caselaw on the Constitutionality of Statutes
Mandating DNA Sampling on Arrest (Nov. 28, 2009)

Appellate: Highest Courts (1-0)
● Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state arrestee law upheld under unspecified balancing test and analogy to fingerprinting as a booking procedure)
Appellate: Intermediate Courts (0-1)
● In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law struck down as per se unreasonable without probable cause and a warrant)
● Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)
Federal District Courts (1-1)
● United States v. Pool, CR. No. S-09-0015 EJG, 2009 WL 2152029 (E.D.Cal. July 15, 2009)
(federal arrestee law upheld under “totality of circumstances” balancing test) (oral argument before the Ninth Circuit Court of Appeals in docket no. 09-10303 scheduled for the second week of December)
● United States v. Mitchell, No. 2:09cr105, 2009 U.S. Dist. LEXIS 103575 (W.D. Pa. Nov. 6, 2009) (federal law held unenforceable as per se unreasonable)
● Pending: Haskell v. Brown, 09-cv-04779-CRB (N.D. Cal. 2009) (challenge to California law adopted by proposition, no clear standard articulated by either party) (hearing on preliminary injunction scheduled for December 4)

Table 2. Law Review Articles and Notes on the Constitutionality
of Statutes Mandating DNA Sampling on Arrest (Nov. 28, 2009)

Faculty: (1-1)
● D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455-508 (2001) (a statute with sufficient protections of private, nonidentifying information is constitutional under the special needs exception)
● Tracey Maclin, Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but that it should reject the practice as per se unreasonable)
● D. H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J.L. Med. & Ethics 188 (2006) (proposing a “biometric information exception” to the warrant requirement)
Student (2-2)
● Martha L. Lawson, Note, Personal Does Not Always Equal “Private”: The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government’s interest in mandatory testing of all those arrested outweighs individuals’ privacy interests)
● Reneé A. Germaine, Comment, “You Have the Right to Remain Silent. . . You Have No Right to Your DNA” Louisiana’s DNA Detection of Sexual and Violent Offender’s Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer & Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
● Kimberly A. Polanco, Note,  Constitutional Law-The Fourth Amendment Challenge to Dna Sampling of Arrestees Pursuant to the Justice for All Act of 2004: a Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
● John D. Biancamano, Note, Arresting DNA: The Evolving Nature of Dna Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests)
● Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to “former arrestees”)


John Gramlich, States Collecting DNA from Arrestees, July 27, 2006, http://www.stateline.org/live/details/story?contentId=129960, accessed Nov. 28, 2009

Richard Williams, Taking DNA Samples from Arrestees, 17 Legisbrief No. 40, Oct. 2009, http://www.ncsl.org/?TabId=18715, accessed November 28, 2009

15 La . Rev. Stat. § 609(A)(1) (“A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.”), derived from Act No. 737, approved July 9, 1997, and amended in 2003 (adding the phrase “including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses”) and 2009.

3 thoughts on “DNA on Arrest: The Score is Tied

  1. David H. Kaye

    An informant sent me the following report:

    On January 21, plaintiffs filed in the Ninth Circuit a notice of appeal of the district court’s denial of their motion for preliminary injunction. It appears that the appeal stays further proceedings in the district court, at least with respect to our motion to dismiss.

    There is an expedited time frame for review of preliminary injunction. Plaintiffs’ brief is due Feb. 18, 2010. The defendants’ response is due March 18. Any amicus brief in support of collecting/processing and searching DNA data bank samples from adult felony arrestees would need to be filed within 7 days of that (March 25). See Fed. Rule of Appellate Procedure 29.

  2. David H. Kaye

    California moved to dismiss the complaint in Haskell. The state contends that the law is so clear that there is no room to strike down the California system. Plaintiffs respond, in part, that the Supreme Court’s opinion in Schmerber, which merely holds that exigent circumstances can substitute for a warrant in justifying the extraction of blood for an analysis of blood alcohol concentration, is dispositive. Plaintiffs also pretend that no appellate court has upheld DNA sampling on arrest. My free advice to both sides is to get real.

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