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                            LexisNexisª Academic

                 Copyright (c) 2002 Georgetown Law Journal
                           Georgetown Law Journal

                                April, 2002

                             90 Geo. L.J. 1009

LENGTH: 23912 words

NOTE: DNA Warrants: A Panacea for Old, Cold Rape Cases?

Veronica Valdivieso *

* J.D./M.P.H., Georgetown University Law Center and The Johns Hopkins
Bloomberg School of Public Health, 2002; A.B. in Molecular Biology,
Princeton University, 1997. I would like to thank Professor Steven Goldberg
and the editors and staff of The Georgetown Law Journal, especially Heather
Johnson Kukla, for their helpful comments and suggestions. Special thanks to
my family and friends for their support and encouragement.

SUMMARY:
... As discussed below, constitutional guarantees will likely prevent
general testing of the population for law enforcement purposes, and thus,
the only suspects that will be apprehended will be those who have already
been convicted of other crimes and whose DNA is in a database. ... Given
that law enforcement would need to have probable cause to arrest an
individual, they would need to be reasonably certain that the individual's
DNA profile matched that of the person in the warrant prior to arresting
him. ... For a full-blown law enforcement search, probable cause is
required. ... Three of these could potentially apply to DNA warrants,
including: (1) collection of DNA samples based on consent, as in law
enforcement dragnets; (2) a full-blown search requiring compelled
contribution of a DNA sample based on probable cause; and (3) compelled
contribution for certain sex offenders. ... The New Jersey Supreme Court
upheld the testing provided that that there was probable cause to believe
that the accused offender exposed the victim to the risk of HIV
transmission. ... The New Jersey Supreme Court held the HIV testing of
accused sex offenders constitutional, provided that a court find probable
cause that the victim was exposed to the virus prior to ordering the test.
... If the government could argue successfully that the database satisfied
special needs beyond law enforcement, a departure from both the probable
cause and warrant requirements could be justified. ...

TEXT:

      [*1009]  Eight years ago, Jeri Elster, a legal secretary in Los
     Angeles, woke up at 1 A.M. to find a stranger standing over her
     bed and pinning her arms and legs to the mattress. After tying her
     hands with a pair of her pantyhose, the man raped her for 2 1/2
     hours.

     For several years, Elster worked with police to find her
     assailant. She had a "rape kit" made at the hospital that would
     preserve the semen the rapist left behind. She worked with a
     sketch artist and had her house dusted for fingerprints.

     Finally, in late 1999, authorities found a match for the DNA taken
     from the rape kit in the state's database of DNA taken from
     convicted California felons. The DNA came from a man imprisoned
     since 1992 for an unrelated crime.

     Elster picked the man out of a lineup. But a prosecutor then told
     her something she never expected to hear--that the suspect never
     would be tried for her rape. Police found the man two years after
     the state's statute of limitations had passed, and it was too late
     for them to press charges. n1

INTRODUCTION

Recently, prosecutors have begun to employ an innovative technique to avoid
the problem presented by the above scenario. By bringing charges against
"John Doe," whose DNA profile matches that of the rapist, district attorneys
in several states are tolling the statute of limitations and keeping rape
cases alive. n2

 [*1010]  Wisconsin and California were the first states to arrest suspects
on the basis of a DNA-based indictment or warrant. n3 This Note will address
the legal and practical concerns presented by the use of such DNA warrants
and related indictments. In September of 1999, a district attorney in
Wisconsin became one of the first prosecutors to obtain a warrant and file
criminal charges against a man identified in the warrant solely by his DNA
profile. n4 This innovative warrant, commonly called a DNA warrant, was
obtained in the hope of tolling the state statute of limitations on a rape
case. n5 Since then, Wisconsin prosecutors have charged five individuals in
rape cases using this technique. n6 In New Mexico, prosecutors indicted a
John Doe for raping nine women over seven years. n7 In both Wisconsin and
New Mexico, the suspect's name is not required for a warrant if authorities
can identify the person with "a reasonable amount of certainty." n8
Prosecutors in California and New York have also indicted serial rapists
using DNA profiles. n9 In fact, prosecutors in several states are "trying to
keep rape cases which are threatened by a statute of limitations violation
alive by filing formal charges against unknown defendants who have left only
their  [*1011]  genetic fingerprints on sex crimes." n10 The prosecutors in
these cases typically have some other evidence about the suspect, such as a
general physical description and the modus operandi. n11

Civil libertarians and defense attorneys are protesting the DNA warrants;
they claim the warrants are unfair to defendants because they circumvent the
statute of limitations. n12 The opponents of the DNA warrants claim that the
statute of limitations serves to "protect people from being charged with
actions that they can't defend themselves against because they happened so
long ago" and that by tolling the statute for an unknown suspect, the DNA
warrants fail to protect against staleness. n13

Practical concerns also pose problems for the use of DNA warrants. The
warrants would be used in conjunction with the national network of criminal
DNA databases to find matches for the John Does and bring them to trial. n14
Given that most existing databases contain only DNA profiles of convicted
criminals, police will only be able to use the DNA warrants to apprehend
rapists who have been convicted previously of other crimes. n15 Moreover,
backlogs in analyzing DNA samples means that the DNA databases are
incomplete. n16

In view of the opposition to DNA warrants by the defense bar and the
practical obstacles to their implementation, the legitimacy and usefulness
of these warrants must be evaluated. Although most would agree that rapists
should be prosecuted and convicted for all of the crimes they have
committed, DNA testing may not be the best investment of limited public
resources. n17 The investment value is diminished because to arrest and
prosecute a John Doe using a DNA warrant, John Doe's DNA must first be
tested to ensure that his  [*1012]  DNA profile matches the DNA in the
warrant. As discussed below, constitutional guarantees will likely prevent
general testing of the population for law enforcement purposes, and thus,
the only suspects that will be apprehended will be those who have already
been convicted of other crimes and whose DNA is in a database. Convicting a
felon on probation of an additional crime does not seem to provide as great
a benefit to society as convicting an otherwise free individual of a crime
such as rape. Although in a world with unlimited resources it would make
sense to utilize this technology, it may be prudent to funnel limited
resources into projects that would have a broader benefit, such as the
extension of the statute of limitations in rape cases. By first extending
the statute of limitations, a state can signal to rape survivors that they
were victims of a crime the state views as serious. Once the state has sent
this important message, resources can be expended to increase successful
prosecutions in rape cases through the use of DNA warrants.

Part I of this Note will describe the current technology available for DNA
profiling, commonly referred to as DNA fingerprinting, and the controversy
over the admissibility and reliability of DNA fingerprints. The scientific
processes used to create DNA fingerprints, as well as the potential for
inaccurate identification, are also discussed. This part ends with a
discussion of the historical controversy surrounding the admission of
scientific evidence and how the legal community may receive this particular
technological tool for law enforcement.

Part II examines the constitutionality of DNA warrants, with particular
emphasis on the possible ways a DNA warrant could be executed. Several
Fourth Amendment concerns are explored, including the warrant requirement
and issues of particularity, the way in which a DNA sample will be obtained
to compare with the fingerprint in the warrant, and the necessary level of
justification needed to obtain the DNA sample. Several other potential
problems are then highlighted, including concerns of self-incrimination
under the Fifth Amendment, speedy trial considerations, and the potential
for staleness of a DNA warrant. DNA warrants should withstand even rigorous
constitutional scrutiny. Notwithstanding the issue of their
constitutionality, DNA warrants present several concerns with respect to
tolling the statute of limitations. Such issues are considered in Part III,
along with alternatives that may alleviate these concerns. Part IV explores
future issues that may arise as a result of expanded use of DNA databases.
The considerations include the possibility of dragnets and of a national DNA
database that includes DNA fingerprints for all Americans. The
constitutionality of such uses of DNA fingerprinting technology is briefly
discussed. After consideration of these future issues, Part V presents a
recommendation that addresses the practicality of using DNA warrants to
improve the success of rape prosecutions.

I. BACKGROUND ON DNA PROFILING

To understand the controversy surrounding the use of DNA warrants, one must
understand the technology involved and the legal issues associated with
 [*1013]  the use of DNA evidence in court. After introducing DNA in
general, this part will discuss the process of creating a DNA fingerprint.
The historical debate over the admissibility of scientific evidence will be
discussed, with a particular emphasis on the legal bases for admissibility
of DNA evidence and the problems of using DNA evidence for identification.
Finally, the DNA database system, and concerns about its use, will be
described.

A. WHAT IS DNA?

Deoxyribonucleic acid (DNA) is a complex molecule found in the nuclei of
nucleated cells. n18 The primary function of DNA is as genetic material--it
encodes and transmits heritable traits from parent to offspring. n19 Almost
every cell in the body contains the same DNA, thus most tissue samples left
at a crime scene will contain the perpetrator's DNA. n20

DNA is a double helix, a structure that resembles a ladder twisted around
itself to form a spiral. n21 A strand of DNA is composed of a
phosphate-sugar backbone and four types of nucleotide bases: guanine (G),
cytosine (C), adenine (A), and thymine (T). n22 These bases bond together to
hold the strands of DNA together in the double helix; this bonding occurs
only between cytosine and guanine or between adenine and thymine. n23 There
are approximately three billion of these base pairs of DNA in the nucleus of
a human cell. n24 In the nucleus, the DNA double helices are organized into
chromosomes, of which humans have forty-six. n25 Each chromosome is composed
of genes, functional units of DNA that encode a particular trait. n26

B. ANALYZING DNA

Although the greater part of a person's DNA encodes general human
characteristics and is thus identical from one individual to another, there
is a small portion of our genetic code that varies; it is this variable
region that can be used to identify individuals. Ninety-nine to 99.9% of DNA
is identical from one  [*1014]  person to the next. n27 It is generally
agreed, however, that everyone's DNA sequence, with the exception of
identical twins, is unique if all three billion base pairs are examined. n28
Given that much of the sequence is similar from individual to individual,
limited regions, termed polymorphic loci, n29 are selected for comparison in
profiling. n30 By isolating and comparing variable DNA regions, scientists
can determine whether two particular samples contain the same polymorphisms.
n31 To assess whether or not a suspect's DNA and a crime scene sample match,
scientists compare four or five different loci. n32 If these loci do not
carry the same polymorphisms, the samples came from different people. n33 If
the polymorphisms are identical, however, a scientist can calculate the
probability that the samples came from the same person based on the
frequency of the polymorphisms in the general population. n34

The polymorphic loci commonly used for identification purposes are known as
variable number of tandem repeat (VNTR) sequences. n35 VNTRs are short,
ten-to-thirty base pair sequences of DNA that vary in the number of
repetitions at a single locus from individual to individual. n36 Both the
length of the VNTR sequence and the number of times it is repeated vary from
one individual to another. When the VNTR sequences from the forensic sample
and a suspect's DNA are of the same length, this constitutes a "match." n37
By comparing the profile of the DNA extracted from forensic specimens such
as semen from a vaginal swab in a rape kit, blood stains, or skin lodged
under a victim's fingernails to that of the suspect's DNA, scientists can
determine whether the samples match. n38

To assess whether the crime scene sample and the suspect's DNA match,
scientists must isolate and analyze the DNA, which can be accomplished
through one of two methods: restriction fragment length polymorphism (RFLP)
analysis or polymerase chain reaction (PCR) amplification.

 [*1015]  1. RFLP

The first and most commonly used technique is the six-step RFLP analysis.
n39 First, DNA from the suspect's blood sample and from the rape kit or
crime scene must be purified. n40 To accomplish this, the sample is
dissolved in a detergent with an enzyme added to break up the cells. n41 DNA
is then separated from the solution by extraction with a mixture of organic
solvents. n42

The second step in the RFLP test involves cutting the suspect's isolated DNA
into pieces to compare it with other DNA samples. n43 To cut the DNA at
specific spots, certain enzymes called restriction endonucleases are used.
n44 For example, the FBI uses the enzyme Hae III, which cuts DNA wherever
the four base-pair sequence GGCC--guanine, guanine, cytosine,
cytosine--appears. n45 These restriction enzymes splice the DNA on both
sides of the VNTR sequence, a commonly used polymorphic loci, but do not cut
the VNTR sequence in the middle. n46

In the third step, the DNA fragments are separated by using gel
electrophoresis. n47 The DNA fragments are placed in small wells near one
end of a solidified gel. n48 An external electric field is applied to the
gel, which causes the negatively charged DNA molecules to migrate toward the
positive pole at the far end of the gel. n49 The shortest fragments move
fastest so that the fragments are sorted by size with the smallest pieces at
the bottom of the gel. n50

The fourth step of the RFLP analysis results in removing DNA fragments from
the gel. To facilitate comparison with other DNA samples, the pattern formed
by the DNA pieces is transferred to a membrane that can be exposed to
labeled probes. The gel containing the DNA fragments is first removed from
the electric field. n51 A nylon membrane is then placed against the gel and
another magnetic field is applied so that the DNA moves from the gel to the
membrane with the order of DNA fragments remaining intact. n52

In the fifth step, the nylon membrane is soaked in a solution containing a
probe. n53 The probe binds to specific DNA sequences on the membrane, with
 [*1016]  every VNTR sequence binding to a different probe. n54 After the
excess probe is rinsed off, the radioactively labeled membrane is dried. n55
In the sixth and final step, the labeled membrane is exposed to X-ray film
through a process called autoradiography. n56 Where the membrane is
radioactively labeled, a band appears on the X-ray film. n57 The bands on
the film represent locations on the gel where specific VNTR sequences
migrated. n58 It is the pattern of bands on the film that is referred to as
a DNA fingerprint, with the distance migrating corresponding to the size and
molecular weight of a particular fragment. By comparing how far a VNTR
sequence has migrated in the gel, it is possible to tell how many repeats
there are in the fragment and to know if two samples of DNA have the same
VNTR sequences.

2. PCR

The second type of fingerprinting procedure is PCR, an alternative to RFLP
analysis used only when RFLP cannot be performed. n59 PCR amplification can
be used on much smaller DNA samples, but it is more sensitive to sample
contamination. n60 If there is sufficient intact DNA, the RFLP method is
preferred because it is more useful, with each fingerprint occurring only in
one person in every one hundred thousand to one hundred million. n61 If the
forensic sample is too miniscule for RFLP testing, or if the DNA has
degraded because of exposure to sunlight, high temperatures, or excess
humidity, DNA analysis with the aid of PCR may be useful. n62 PCR analysis
detects variations in genes, which show far less variation from one person
to another than the noncoding regions of the genome; each profile occurs in
one person in every few thousand. n63

The PCR process results in amplification of DNA to create vast numbers of
copies of a particular gene. n64 The PCR process depends on knowing the
primers, and begins with the DNA of interest being cut into fragments with
an endonuclease. n65 Once the DNA has been cut, the double helix structure
is denatured, or unwound into single strands, with heat, and two primer
sequences  [*1017]  are added. n66 The primers bind to the denatured strands
of DNA adjacent to the region to be copied. n67 DNA polymerase is added, and
a complementary copy of each strand is produced. n68 The number of copies of
the targeted area of interest doubles with each cycle of this process, so
that over a million replicas can be created in eight hours. n69 As in the
case of RFLP analysis, the PCR product can be run on an electrophoresis gel
to allow for comparison of the size of fragments originating from different
samples of DNA.

Regardless of the technique used for analysis, particular loci need to be
examined to assess whether a match has been made. n70 If a match is found at
each of the loci chosen, then it is necessary to determine the statistical
probability that the match occurred by chance rather than because the
suspect's DNA is the same as that of the person who committed the rape. n71
The greater the number of fragments the DNA is cut into, and thus the more
bands that are in a DNA fingerprint, the smaller the odds of a match
occurring by chance. n72 There is always the possibility, however, that an
error has occurred in the testing labs, n73 and this possibility would
likely be part of a defense argument against the reliability of the
evidence.

In summary, DNA fingerprints can be used to compare two or more DNA samples
to determine if they were derived from the same individual. This analysis
could be used to determine if a particular person's DNA matches that found
at the crime scene and to describe a John Doe in a DNA warrant. In the case
of a DNA warrant, prosecutors use DNA isolated from the rape kits or other
physical specimens from the crime scene and have the DNA analyzed. n74 The
sample could then be compared with the profiles in a DNA database to
determine if there are any individuals whose DNA fingerprint matches that of
the rapist. At present all states have established DNA databases comprised
of genetic information from some convicted criminals for use in
investigations. n75

C. THE GENERAL DEBATE OVER THE ADMISSIBILITY AND USE OF DNA EVIDENCE

DNA fingerprinting, also referred to as DNA typing or profiling, has been
the focus of heated exchanges in courtrooms, the popular press, and
scientific  [*1018]  journals. n76 It is "a powerful law-enforcement weapon,
especially in cases of rape, because it has the potential to exonerate a
suspect or to place him at the scene of a crime." n77 DNA fingerprinting has
been subject to many challenges, including the scientific validity of the
technology, n78 the adequacy of the protocols, and the proficiency of the
testing facilities. n79 In addition, the statistical significance of DNA
matches has been much debated. n80 Courts have long varied in their approach
to whether DNA evidence is admissible and reliable. n81

DNA profiling for identification purposes is arguably "the most significant
development in forensic science since fingerprinting itself, creating the
possibility of uniquely identifying an individual from a single cell left at
the scene of a crime." n82 DNA fingerprinting is said to have a stronger
scientific basis than many other types of evidence that have been used for
years in court cases. n83 If  [*1019]  DNA evidence is admitted, then each
side's advocates can freely debate its strengths and weaknesses in front of
the jury. n84 This section considers two main issues: the legal bases for
the admissibility of scientific evidence such as DNA fingerprints, and the
use of DNA fingerprints as evidence.

1. Legal Bases for Admissibility

The legal standard for the admissibility of scientific evidence has evolved
over the past eighty years. Beginning in the 1920s, courts generally
followed the test set forth in Frye v. United States, n85 which held that
general acceptance of a particular method by the scientific community
determined its reliability and hence its admissibility. After the enactment
of the Federal Rules of Evidence (the Rules), the standard shifted to
include relevance as well as reliability. n86 In 1993, the Supreme Court
established the most recent embodiment of the scientific evidence
admissibility standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. n87

After the enactment of the Rules, there was a period of uncertainty about
the  [*1020]  relevant standard for the admissibility of scientific
evidence. n88 While some courts tried to reconcile the early Frye case with
the Rules, others thought the Rules superceded Frye, while still other
courts enacted their own admissibility standards. n89 In Daubert, the
Supreme Court resolved the confusion and brought uniformity to this area.
n90 The Daubert Court held that scientific evidence was admissible so long
as it was both reliable and relevant. n91 The Court upheld the standard of
Rule 702 and offered four criteria to be weighed when considering the
admissibility of evidence under the rule. n92 The first criterion is whether
a particular theory or technique can be and has been tested. n93 Second,
courts may consider whether the technique has been subjected to peer review
and publication, although this is not critical to reliability. n94 A third
criterion is whether the rate of error or the potential for error is known.
n95 Courts may also look to a fourth criterion of whether the theory or
techniques are generally accepted under the Frye test. n96 In spite of the
suggested criteria, the Court emphasized the flexibility of the standard for
admissibility under Rule 702 and stressed that no "definitive checklist"
need be satisfied for the admission of scientific evidence. n97

Under the Daubert analysis, evidence of a match between the DNA in a rape
kit and that of a particular felon in the database is likely to be admitted
against a defendant. n98 First, DNA profiling procedures are capable of
being tested and  [*1021]  have undergone some testing. n99 Second, the
process of DNA profiling has been subjected to substantial peer review and
publication. n100 Third, most courts have held that questions about the
error rate go to the weight of evidence rather than to its admissibility.
n101 Finally, there are courts that have held DNA fingerprinting to be
generally accepted under Frye. n102 Under the four factors enunciated by the
Daubert Court, then, DNA fingerprints are likely to be admissible evidence.

2. Problems with Using DNA Evidence for Identification

Even though DNA fingerprinting and testing has become more widespread and is
likely to be admissible in court, there is not yet a consensus about how to
use it at trial. n103 The disagreement regarding the use of such evidence
centers on the calculation of whether a match occurs between the crime scene
DNA sample and the DNA sample derived from the suspect, or whether the
particular match occurred due to chance. n104 A further problem arises due
to the lack of uniform  [*1022]  standards and quality controls in forensic
laboratories. n105

The preferred statistical method for determining the likelihood that a
particular DNA match is due to chance is called the product rule. n106 Using
theoretical models, the product rule allows a statement of numerical
significance that goes beyond the size of the population sample or the
database. n107 The method requires a determination of the statistical
frequency in an individual's ethnic group of each allele analyzed. n108 An
allele is "any of several alternative gene forms at a given chromosomal
locus." n109 These individual allele frequencies are multiplied together to
determine the likelihood of a match for the entire DNA fingerprint or
pattern. n110 The main criticism of the product rule is that the broad
definition of ethnic groups may fail to account for variations in unstudied
subpopulations within the ethnic groups and thus results in an underestimate
of the probability of a coincidental match. n111

To avoid the underestimation of the probability of coincidental matches, the
National Academy of Sciences (NAS) has recommended a conservative method
called the ceiling principle for calculating the odds of a match. n112 The
NAS suggests assembling databases with DNA profiles from about 100
individuals from each of fifteen to twenty homogeneous reference
populations. n113 Until the completion of the databases, the ceiling
principle would call for scientists to use the highest frequency for the
ethnic group in question or ten percent, whichever was larger, to calculate
the odds of a  [*1023]  coincidental match. n114 This method would thus be
conservative regardless of the defendant's ethnicity. n115 Forensic
scientists have largely adopted the ceiling principle. n116 The use of the
ceiling principle is not uncontroversial, however, and some commentators
question its use in cases involving DNA database searches. n117

Another problem surrounding the admission of DNA fingerprinting evidence is
the lack of standards for forensic laboratories that conduct DNA testing.
n118 To improve the proficiency and reliability of laboratories, at least
one commentator has suggested that Congress should create a regulatory body
to design and implement uniform laboratory standards on a national level.
n119 This body should regulate the handling and testing of DNA to ensure
that results from different laboratories can be compared effectively and
reliably. n120

Thus, in spite of the general debate about potential problems with
admissibility and the use of DNA evidence, courts likely will admit evidence
of a match between the DNA in a rape kit and that of a particular felon in a
DNA database against a defendant. By using standardized methods to calculate
matches and instituting procedures to minimize potential analysis errors,
evidence of matches should prove a powerful tool in the prosecution of
rapists.

D. DNA DATABASES

DNA fingerprints can be stored in computerized systems known as DNA
databases to facilitate searches for matches with unidentified crime scene
samples. n121 DNA databases can facilitate law enforcement in many ways,
including making convictions more likely, speeding prosecutions, encouraging
defendants to plead guilty, facilitating convictions that might otherwise
not be  [*1024]  tried, and exonerating innocent suspects. n122 This section
discusses the development and use of forensic DNA databases as well as
concerns regarding the expansion of such systems. n123

1. Background on DNA Databases

DNA databases have been in use in the United States for over a decade. n124
Individual states, the federal government, and the Department of Defense
maintain such databases, whose size and number have been increasing in
recent years. n125 Every state requires certain criminals to submit DNA
samples for inclusion in DNA databases. n126 The range of criminals whose
DNA is  [*1025]  included varies from that of convicted sex offenders to
anyone who is incarcerated, on probation, paroled, or found not guilty by
reason of mental illness. n127 The statutes usually require DNA be taken
from violent offenders, particularly murderers. n128 Some states require
sample submissions by individuals who are merely arrested for sexual felony
offenses, whereas others require conviction or even a showing that
collection of the DNA is in the best interest of justice. n129

Congress has also made efforts to create a federal database. n130 The DNA
Identification Act of 1994 n131 authorizes the Attorney General to grant
money to the states for the development of DNA collection systems. The
grants are contingent upon states collecting, at a minimum, DNA samples from
felony sex offenders. n132 The state databases contribute to the national
Combined DNA  [*1026]  Identification System (CODIS), which is operated by
the FBI. n133 Integration of data in CODIS has proved problematic because of
inconsistencies among the states as to what types of offenders are included
in their DNA databases and because of the states' discretion as to what
information is shared with the FBI. n134

Although progress has been made, existing DNA databases do not yet contain
fingerprints from all eligible convicts. n135 DNA databases "have been
hobbled by enormous backlogs of DNA samples, both from crime scenes and from
convicted felons." n136 In New York City, for example, there are 12,000
unprocessed rape kits. n137 Nationally, an estimated one million DNA samples
collected from eligible criminals await processing for inclusion in state
databases. n138 To facilitate the analysis of this huge backlog, the
Department of Justice will provide thirty million dollars to state crime
labs across the country. n139 Increased funding is intended to help states
eliminate their backlog, as occurred recently in California. n140

Interestingly, while there are currently no plans to develop a national DNA
database containing profiles of all citizens, such a development is not
impossible. n141 In fact, in the military context, such a universal system
has existed  [*1027]  since 1991. n142 To facilitate identification of
unknown soldiers killed in future battles, the Department of Defense created
a DNA database of all active service members and military recruits. n143
Although the use of the database is purportedly limited to the
identification of remains, a court order could allow both the FBI and
civilian police to access samples. n144

2. Concerns About DNA Fingerprinting and Databases

The increased use and inclusiveness of DNA databases across the country
raises several concerns. First, there are concerns about informational
privacy, security, and access to the profiles stored in the databases,
especially when a DNA profile may contain sensitive genetic and
health-related information. n145

DNA contains all of an individual's genetic information, including genetic
predispositions and diseases. n146

     [DNA] contains vastly more information than an ordinary
     fingerprint, information that could conceivably (and easily) be
     used for purposes other than those originally intended by the
     creators of the database. For the moment, the 'Brave New World'
     scenario seems far-fetched, but with databases rapidly filling
     with genomics data, it is not difficult to foresee enormous
     potential for misuse of such data, perhaps even under the auspices
     of revealing possible genetic bases of criminality. n147

These concerns are countered, however, by the fact that the information
included in the profiles can be restricted to particular loci that are
relevant only for identification. n148 RFLP analysis "reveals nothing about
a subject's physical characteristics, his risk of genetic disease, or any
other specific information likely to give rise to significant privacy
concerns." n149 The DNA fingerprint generated in the RFLP analysis reveals
little more information about a person  [*1028]  than a conventional
fingerprint or a mug shot. n150

Further, the potential of exonerating the innocent using a DNA database
helps counterbalance the fears of the misuse of the system. Perhaps
requiring that DNA fingerprinting be used to protect the innocent and to
confirm convictions would allay some of the fears of misuse of this
technology. Over fifty prisoners in the United States, many of them on death
row, have been exonerated by DNA evidence. n151 DNA evidence in general, and
DNA fingerprints and databases in particular, can be "powerful tool[s]--both
to free the innocent and to help prevent wrongful convictions before they
occur." n152 By using these systems to ensure that justice is served--that
the innocent are exonerated and the guilty are punished--DNA databases can
be justified and their continued use and improvement made indispensable to
the proper functioning of our criminal justice system.

An additional concern remains with respect to DNA warrants and databases:
The warrants will only lead to the arrest and ultimately the conviction of
persons whose genetic profiles are already included in a database. DNA
warrants have been used in conjunction with DNA databases to apprehend
suspects. n153 This process works in the following manner: The DNA
fingerprint of the perpetrator, used to identify him in the warrant, is
compared to the profiles in a given DNA database. A match between the
fingerprint in the warrant and one in the system allows law enforcement to
identify the perpetrator by name. The main problem with this process is that
it will only allow for the conviction of previously convicted criminals for
additional crimes rather than allowing law enforcement to capture new
criminals. It could thus be argued that using DNA warrants does not allow
for the arrest and conviction of new criminals, but only of recidivists.
n154 It could be argued, however, that there is value in ensuring  [*1029]
punishment for all crimes a particular individual commits. Provided
resources are sufficient to cover the costs of DNA fingerprinting and of
maintaining the databases, such additional convictions arguably would be
warranted. If, however, resources are insufficient, it may be more
beneficial to rape survivors for states instead to abolish statutes of
limitations on rapes than to conduct time-consuming and costly DNA
fingerprinting. n155

DNA fingerprints, which exploit the uniqueness of each individual's genetic
code, are being used to identify John Does in warrants. States already have
in place DNA databases, which can be used in conjunction with DNA warrants
to identify perpetrators of rapes. The admissibility of DNA evidence in
general is largely accepted, but the use of DNA evidence for identification
may be more problematic. It is likely, however, that DNA databases will be a
powerful tool for rape investigations.

II. CONSTITUTIONALITY OF DNA WARRANTS

A major concern with DNA warrants involves their constitutionality. To
evaluate the legality of these investigative instruments, several
constitutional provisions will be considered. n156 Perhaps the major concern
raised by DNA warrants is their conformity with the Fourth Amendment. DNA
warrants also implicate other constitutional rights, however, such as the
Fifth Amendment protection against self-incrimination. In addition, speedy
trial issues and staleness problems may arise in connection with the use of
DNA warrants. Although the following analysis of DNA warrants is not
exhaustive, it raises some of the most pressing issues that are connected to
the use of DNA warrants to investigate rape cases.

 [*1030]  A. FOURTH AMENDMENT CONCERNS

An important consideration with respect to the constitutionality of DNA
warrants is whether the Fourth Amendment limits the use of these types of
warrants. The Fourth Amendment guarantees:

     The right of the people to be secure in their persons, houses,
     papers, and effects, against unreasonable searches and seizures,
     shall not be violated, and no Warrants shall issue, but upon
     probable cause, supported by Oath or affirmation, and particularly
     describing the place to be searched, and the persons or things to
     be seized. n157

DNA warrants implicate the Fourth Amendment for several reasons. First, the
constitutionality of the warrant issued on the basis of a DNA profile must
be considered. This issue is whether a warrant issued for an individual
based on his DNA profile is sufficiently specific to comport with Fourth
Amendment particularity requirements. Second, the constitutionality of the
warrant can hinge on the method used to identify the John Doe who matches
the DNA profile described in the warrant; a particular method may constitute
an unreasonable search. After discussing the potential for unreasonable
searches, this section will provide a concrete example of the Fourth
Amendment in action: HIV testing of accused sex offenders.

1. The Particularity Requirement and Warrants for Unnamed Persons

The Fourth Amendment requires that warrants describe the person to be seized
with particularity. n158 Particularity is required so that the executing
officer can reasonably identify the persons or places to be searched or
arrested and the things to be seized. To uphold the core value of the Fourth
Amendment, which is the protection of privacy from arbitrary police
intrusion, the executor of a warrant should have little, if any, discretion.
n159 The particularity requirement does not preclude the issue of a warrant
for "one whom the police cannot identify by name in advance." n160 What the
particularity requirement does demand is "a sufficient nexus between the
criminal activity, the place of  [*1031]  activity, and the persons in the
place to show probable cause." n161

To satisfy the particularity requirement, a warrant should "identify the
person in such a manner as to leave the officer no doubt and no discretion
as to the person to be searched." n162 In other words, a warrant satisfies
the constitutional requirement of particularity if the person is described
in such a manner that he may be identified with reasonable certainty. n163
Rule 4(c)(1) of the Federal Rules of Criminal Procedure also requires that
warrants contain a name or description by which the defendant can be
identified with reasonable certainty. n164 To comply with the Fourth
Amendment and Rule 4(c)(1), the Second Circuit, for example, holds that "the
name, or a particularized description, must appear on the face of the 'John
Doe' warrant." n165

If non-DNA arrest warrants are any predictor, DNA arrest warrants
accompanied by a detailed physical description or other identifying
information may be sufficiently particular. n166 In cases in which warrants
for unnamed defendants included a detailed description, they have frequently
been upheld. For example, in State v. Frazier, n167 the Connecticut Supreme
Court upheld a warrant which described the person to be searched for
narcotics as "a black male of dark complexion being approximately 25 to 30
years of age, 5'6" tall and 180 pounds with a flat top hair cut and
mustache." n168 Similarly in Saum v. State, n169 the Maryland Court of
Appeals upheld a warrant for the search of a white man, "about fifty years
of age, about five feet, ten inches in height and weighing about 165
pounds." n170

Some courts have held warrants for unnamed or unknown individuals to be
insufficiently particular. n171 If a warrant is accompanied by a general
description that would describe many individuals, courts often hold the
warrant invalid. For example, the Illinois Supreme Court held that a John
Doe warrant authorizing the search of a young black male of certain height
and weight was an impermissible general warrant because it was executed by
officers who had never seen  [*1032]  the person whom they were supposed to
search. n172 Given that the broad description would apply to many people,
the court was concerned that there would be little safeguard against the
possibility that the officers would mistakenly search the wrong person. n173

It is unclear whether there will be a particularity problem with DNA
warrants. On the one hand, DNA profiles are highly specific to one
individual and thus a DNA warrant would likely be found particular. The
willingness of courts to accept conventional fingerprints as sufficiently
particular without further descriptions would tend to support the theory
that DNA warrants are likely to pass muster. n174 On the other hand, the
fact that a person's DNA profile is not readily apparent may necessitate the
inclusion of a physical description to aid in the execution of the warrant.
From the arrest warrant cases, it could be reasoned that police hoping to
use DNA warrants would do well to include a physical description of the
suspect on the face of the warrants. n175 Given that courts have accepted
some fairly general physical descriptions, it seems likely that they will
accept as sufficiently particular the highly specific DNA profiles included
in DNA warrants.

2. The Protection Against Unreasonable Searches

In addition to requiring that warrants be particular, the Fourth Amendment
protects against unreasonable searches. n176 Because a person's DNA profile
is not apparent to the naked eye, law enforcement will need to obtain a DNA
sample from an individual to compare it to the one in the warrant and
determine if there is a match. Whether this constitutes a search for which
probable cause is constitutionally required is discussed below. Second, this
subsection will consider the possibility that a DNA profile is just
identifying evidence for which probable cause is not required.

 [*1033]  a. The Practicality of Identifying a John Doe. The first problem
with executing a DNA warrant in conformity with the Fourth Amendment is that
police must be sure that the individual they seize with the warrant is the
John Doe whose DNA profile is detailed therein. Typically, warrants identify
the person to be seized or searched by name or physical description. Both of
these characteristics are readily discernible upon sight or can be confirmed
through documents or corroborated by a third party. DNA profile
identification poses a practical problem in the execution of a warrant in
that one cannot readily know what a person's DNA profile looks like without
obtaining a DNA sample and analyzing it. Given that law enforcement would
need to have probable cause to arrest an individual, they would need to be
reasonably certain that the individual's DNA profile matched that of the
person in the warrant prior to arresting him.

Not all actions that impinge on a person's privacy trigger the Fourth
Amendment. n177 In order for the Fourth Amendment protection against
unreasonable searches to apply, there must be state action, n178 and the
individual must have a reasonable expectation of privacy recognized by
society. n179 Under the Fourth Amendment, a search will be deemed reasonable
if its justification is at a level commensurate to the search's
intrusiveness. n180 For a full-blown law enforcement search, probable cause
is required. n181 A limited search, such as a pat-down for weapons, requires
only reasonable suspicion. n182 An administrative or special needs search
does not require any particularized suspicion as long as there is a
significant government interest. n183

There are several ways of obtaining DNA samples, each of which implicates
unique reasonableness issues in the context of Fourth Amendment searches.
Three of these could potentially apply to DNA warrants, including: (1)
collection of DNA samples based on consent, as in law enforcement dragnets;
(2) a full-blown search requiring compelled contribution of a DNA sample
based on probable cause; and (3) compelled contribution for certain sex
offenders. n184  [*1034]  Each of these collection methods is associated
with varying degrees of justification, ranging from probable cause in those
deemed full searches to a balancing test in the special needs and
administrative search context.

One way to collect DNA samples to arrest the correct person is to profile
multiple suspects, in other words, to conduct a dragnet. In most instances,
such dragnets are conducted with the consent of the individuals involved.
n185 In these dragnet operations, police conduct mass DNA testing by
gathering subjects within a particular target area and requesting that each
of them provide a body fluid or tissue sample from which a DNA profile can
be obtained. n186 These dragnets involve police profiling of as many
subjects as possible without particularized suspicion of any one
individual's involvement in the crime under investigation. n187 Dragnets,
which are more commonly used in Europe, are "expensive, haphazard, and raise
serious questions about their impact on civil liberties." n188

Absent consent, a DNA test probably qualifies as a full search and would
therefore require probable cause. In order to carry out a DNA test, officers
would need to obtain a DNA sample from the suspect in question. One way to
obtain a DNA sample would be to take a blood test. In Schmerber v.
California, n189 the Supreme Court considered whether blood testing
constitutes a search under the Fourth Amendment. n190 The petitioner, who
appeared intoxicated, was arrested at a hospital while he underwent
treatment for injuries suffered in a car  [*1035]  accident. n191 At the
request of a police officer, a physician conducted a blood alcohol test; the
result of this test was used to prosecute the petitioner. n192 The Court
concluded that the compulsory blood test was a search covered by the Fourth
Amendment, but held the test was reasonable and thus constitutional because
there was sufficient probable cause to believe the petitioner had been
driving under the influence. n193 When a DNA test is being carried out to
see if a defendant is the John Doe in a warrant, it is arguably less likely
that the blood test will be held reasonable. n194 First, if only a general
physical description links a particular individual to the DNA warrant, it
would be difficult to argue that there is probable cause to believe that the
individual was the rapist because Schmerber deems blood tests, like those
necessary to obtain DNA, searches under the Fourth Amendment for which
probable cause would be required. Given that probable cause is needed to
profile a suspect's DNA to execute a DNA warrant, these types of warrants
would be useful only when a DNA fingerprint is already available. If, for
example, a person's fingerprint is on file in a database, then the warrants
would be much simpler to use and could be effective in apprehending
criminals.

In the context of compelled contribution of DNA samples by convicted sex
offenders, courts have overwhelmingly approved DNA testing for use in future
investigations despite challenges to the databases, even absent
individualized suspicion or prior court approval. n195 In most instances,
the courts have held that while seizures of blood or tissue samples
necessary for the DNA database do implicate the Fourth Amendment, they are
justified by the governmental interest in law enforcement and are therefore
reasonable under a special needs analysis. n196

A recent case addressed the constitutionality of the collection of DNA
samples from convicted felons for inclusion in a data bank. In Roe v.
Marcotte, n197 the Attorney General of Connecticut sought a court order to
compel Thomas Cobb, who had been sentenced to twenty-five years for a sexual
offense conviction, to comply with a state statute requiring him to provide
a blood  [*1036]  sample for analysis and inclusion in the state's DNA
database. n198 Cobb argued that the state lacked the authority to take DNA
samples without probable cause or reasonable suspicion and to use the
evidence in future criminal investigations. n199 The State did not dispute
that the intrusion was a search, so the court focused its analysis on the
reasonableness of the search. n200 The lower court upheld the search as
reasonable on the theory that at least some of an individual's privacy
rights are lost on arrest and that an individual's presence in the criminal
justice system provides sufficient justification for the search. n201 On
appeal, the Second Circuit affirmed the trial court's judgment on the ground
that the search of a convicted felon's DNA is justified under a special
needs analysis. n202 In reaching this holding, the court balanced the
government's interest in preventing recidivism among sexual offenders,
increasing the efficiency of criminal investigations of sex crimes, solving
crimes, and deterrence against Cobb's privacy interest in his blood. n203

A more specific situation involving compelled contributions by convicts
would also necessitate use of a balancing test. DNA "line-ups," in which a
limited number of suspects have their DNA tested to see if it matches that
of the perpetrator, may be a constitutional mechanism for identifying
suspects described in DNA warrants through DNA databases. n204 If the
line-ups are used for serious crimes in which DNA evidence is available,
such as rape, they are more likely to be upheld. n205 Further, if a cheek
swab, rather than a blood test or other more invasive method of obtaining a
tissue sample from a suspect, is used, the search is more likely to be
constitutional in spite of the lack of probable cause. n206 Finally, DNA
profiles from suspects who are not charged with a crime should be destroyed,
and there should be procedural protections ensuring that suspects' profiles
are not permanently added to databases for use in future investigations.
n207

b. Is a DNA Profile Just Identifying Evidence? If a DNA profile is deemed to
be mere identifying evidence, the Fourth Amendment would not require
probable cause to justify DNA testing. In the case of blood samples and
conventional fingerprints, for example, courts have used the identifying
evidence classification to avoid serious Fourth Amendment problems.

One may argue that a DNA profile, like fingerprint evidence, is merely a
form of identification and should be obtainable on a stop without full
probable cause.  [*1037]  In Davis v. Mississippi, n208 the Court suggested
that police can, under limited circumstances, detain suspects without
probable cause for the purpose of obtaining fingerprints, which are a type
of identifying evidence. n209 Given the limited intrusion needed to
fingerprint an individual, the immutable nature of fingerprints, and their
usefulness for identification purposes, the Court indicated in dicta that no
probable cause would be needed for compliance with the Fourth Amendment.
n210 In subsequent cases, the Court has reaffirmed the belief that police
stops to obtain identification evidence can be constitutional in the absence
of probable cause. n211

Lower courts have applied the Davis dicta to uphold investigatory stops
based on reasonable suspicion. n212 For example, in a case in which police
found a class ring of an eighth-grade graduating class near a murder victim
as well as the perpetrator's alleged fingerprints in the victim's car, the
court directed every boy who had received such a ring to submit to
fingerprinting. n213 The judge's order had several procedural safeguards,
including requirements that (1) the students could be accompanied by a
parent, guardian, or attorney to the fingerprinting; (2) the fingerprints
could be used only for the immediate investigation;  [*1038]  and (3) the
fingerprints would be destroyed at the investigation's completion. n214 On
appeal, the court relied on Davis in upholding the order as reasonable under
the Fourth Amendment in spite of the lack of probable cause to believe that
a member of the eighth-grade class had committed the murder. n215 The court
pointed out that there was "a substantial basis to suspect that a member of
the school class in question may have had some implication in or material
knowledge of the homicide such that fingerprinting of all the male members
of the class was reasonable." n216 Applying this reasoning to rape cases
involving DNA warrants, DNA profiling of a limited class may be justified
provided there is some level of suspicion that a member of the class was
involved. n217

Courts have found DNA profiles to be similar to fingerprints in that they
can be used for identification purposes. In Rise v. Oregon, n218 the Ninth
Circuit analogized the DNA profile information derived from a blood sample
with that obtained from fingerprinting. n219 Although DNA profiles may be
analogous to fingerprints in the sense that they are used primarily for
identification purposes, the more invasive search needed to obtain a DNA
profile necessitates a higher level of justification. n220 However similar
the identification powers of DNA profiling and fingerprinting may be, the
methods used to obtain the information are different in relevant respects.
DNA fingerprinting involves two separate intrusions: the initial collection
of the sample and its subsequent analysis. No bodily intrusion is necessary
to obtain a fingerprint, and furthermore, the naked eye can sufficiently
analyze the fingerprint. In the case of DNA, not only is a more invasive
search required to obtain the sample, but extensive chemical analysis is
needed for the identifying features of DNA to be evident. n221 Further, DNA
fingerprints can reveal "otherwise nonobvious disease states or behavioral
 [*1039]  characteristics." n222 These differences establish that DNA
sampling is "an intrusion of a scope fundamentally different from the
capture of visual images or fingerprints, in which there is a minimal
expectation of privacy because that information ordinarily is held out to
the public." n223 In view of the differences between fingerprints and DNA
profiles, courts should require more than reasonable suspicion for law
enforcement to obtain a DNA sample from a person involuntarily. n224

3. The Fourth Amendment in Action: HIV Testing of Accused Sex Offenders

Another example, involving compelled information from sexual offenders, may
serve as a helpful analogy in the Fourth Amendment analysis of DNA warrants.
Many states compel accused sex offenders to submit to HIV testing upon the
victim's request. n225 In September 1997, the New Jersey Supreme Court
became the first state high court to rule on the constitutionality of a
statute mandating HIV testing of accused sex offenders. n226 The New Jersey
statute was challenged by three juvenile sex offenders who claimed that the
mandatory HIV test constituted an unreasonable search and seizure and that
they had not received sufficient process to satisfy the Due Process Clause.
n227 The New Jersey Supreme Court upheld the testing provided that that
there was probable cause to believe that the accused offender exposed the
victim to the risk of HIV transmission. n228 In reaching this conclusion,
the court relied on the special needs line of Fourth Amendment cases and
dismissed the procedural due process challenge. n229

When the fruits of a search are not for use in a criminal prosecution, a
case involves either an administrative or a special needs search.
Administrative searches may arise in the context of enforcing regulatory
health or safety codes. n230 Although warrants are usually required for
administrative searches, a  [*1040]  warrantless search may be permitted if
the invasiveness is minimal and the need for the regulation is pervasive, so
long as reasonable administrative guidelines are followed. n231
Administrative searches have not yet been held to cover searches of people,
n232 but the Supreme Court has created the special needs doctrine to cover
cases involving needs beyond law enforcement. The special needs doctrine
applies when extraordinary circumstances make the probable cause and warrant
requirements impractical. n233 Under Skinner v. Railway Labor Executives'
Ass'n, n234 the reasonableness of a special needs search "'is judged by
balancing its intrusion on the individual's Fourth Amendment interests
against its promotion of legitimate governmental interests.'" n235 The Court
held that the privacy interest impinged upon by a special needs search must
be minimal, the governmental interest must be important, and the
circumstances must make individualized suspicion impracticable. n236

In the New Jersey case, the court began its Fourth Amendment analysis by
determining that the mandatory HIV test constituted a search. n237 Thus, the
primary issue confronted by the court was the reasonableness of the search.
The court found that the lack of outward manifestations of HIV make it
impossible to require particularized suspicion of infection before testing
the assailant. n238 The court then compared the individual interest in
maintaining the privacy of one's HIV status with the state's interest in
protecting the physical and mental well-being of victims of sexual assault.
n239 The New Jersey Supreme Court held the HIV testing of accused sex
offenders constitutional, provided that a court find probable cause that the
victim was exposed to the virus prior to ordering  [*1041]  the test. n240

A suspect's DNA could be obtained in a manner similar to that used in the
New Jersey case, meaning a particular class of people, such as accused sex
offenders, would be compelled to give samples. As with someone's HIV status,
someone's DNA fingerprint cannot be readily discerned. Thus, practicality
may dictate following a similar approach with DNA fingerprints as has been
done with HIV testing. If the state seeks to identify the John Does merely
to provide victims with peace of mind, then standards similar to those used
in HIV circumstances should apply for DNA testing. If, however, the state
seeks to punish the perpetrators of these crimes, then the same standards as
are normally required in the criminal context--full probable cause to search
the blood or other samples for DNA fingerprints should apply. Given the
limited resources of the criminal justice system, the main goal in rape
cases is to identify and prosecute rapists rather than to seek to provide
victims with peace of mind; thus, if DNA samples are sought from individuals
who cannot be compelled to produce a sample under an existing statute,
probable cause that their DNA would match that described in the warrant
should be a prerequisite to obtaining a sample without their consent.

Although some methods of obtaining DNA evidence may be impermissible under
the Fourth Amendment, there are ways of employing DNA warrants that likely
would be constitutionally permissible. Given that a DNA warrant is likely to
be found sufficiently particular, its constitutionality will turn on how it
is executed. If executed with the consent of the suspect or with probable
cause, then there will be no Fourth Amendment issue. In the event that less
than probable cause is used as a justification or provision of a DNA sample
is compelled absent a sufficient government interest, then there may be
greater issues of unreasonableness.

B. OTHER CONSTITUTIONAL ISSUES

There are other issues that may arise in connection with DNA warrants.
First, a DNA warrant may implicate the Fifth Amendment protection against
compelled self-incrimination. Second, by increasing investigation time and
possibly causing pre- and postaccusation delay, DNA warrants may deprive a
defendant of the right to a speedy trial. Finally, a DNA warrant may present
issues of staleness.

1. Potential Fifth Amendment Self-Incrimination Problems

In cases in which suspects are compelled to provide DNA samples for
comparison with profiles in a DNA warrant, Fifth Amendment concerns arise.
 [*1042]  The Fifth Amendment provides that an individual will not be
compelled to be a witness against himself, as would arguably occur if a DNA
test compels a person to produce evidence that can be used to prosecute him.
n241

To violate the Fifth Amendment, a DNA profile must constitute a
communication of a testimonial nature. n242 Although physical evidence
ordinarily would not be testimonial in nature, limits do exist to the
admission of physical evidence. n243 In Rochin v. California, n244 police
pumped a defendant's stomach to force him to vomit two capsules he had
swallowed in their presence during his arrest. n245 The two capsules were
found to contain morphine, and he was convicted of possession of morphine on
the basis of this evidence. n246 The Supreme Court held unconstitutional on
due process grounds the involuntary pumping of the defendant's stomach to
obtain evidence, saying that the conduct resembled obtaining a confession by
torture and "shocked the conscience." n247 The Fifth Amendment's protection
thus hinges on whether DNA is considered physical evidence rather than a
communication. It is unlikely that a DNA profile would qualify for
protection under the Fifth Amendment, even if it can be used against its
donor, because "other forms of less tangible body-produced evidence, such as
voice and handwriting samples, have been held to be physical evidence" and
not testimonial in nature. n248 DNA is more like voice and handwriting
 [*1043]  samples because it is used to identify someone rather than reveal
something about their behavior, as was the case with the contents of
Rochin's stomach.

2. Do DNA Warrants Violate the Guarantee to a Speedy Trial?

DNA warrants, by effectively tolling the statute of limitations on rape,
will extend investigations and allow prosecutions at a later time than would
otherwise be possible. n249 In light of the time extension, it is important
to consider whether these warrants violate a defendant's right to a speedy
trial. n250 The right to a speedy trial provides protection against both
pre- and postaccusation delay. State statutes of limitations on rape and the
Due Process Clause of the U.S. Constitution protect defendants against
prejudicial and intentional preaccusation delay. n251 The Sixth Amendment
provides protection against postaccusation delay, stating that "in all
criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial." n252 In addition to the Sixth Amendment speedy trial
guarantee, the Speedy Trial Act of 1974 n253 protects defendants from undue
postaccusation delay. n254

Statutes of limitation serve as the primary protection against prejudicial
preaccusation delay. n255 When an indictment is brought within the statute
of limitations, the Due Process Clause may protect the defendant against
undue delay. n256 Under the Due Process Clause, a defendant must show that
"the delay resulted in actual and substantial prejudice, and that the
government's reasons for delay violated 'fundamental conceptions of
justice.'" n257 Unless the government purposely delays a rape investigation,
it is likely to be difficult for a  [*1044]  defendant to prevail under this
stringent standard, regardless of whether the indictment is based on a DNA
warrant or a conventional warrant.

In terms of postaccusation delay, there seems to be no harm caused by basing
an indictment or warrant on a DNA profile. The Sixth Amendment right to a
speedy and public trial attaches after arrest or indictment and "is intended
to minimize pretrial incarceration, restrictions imposed on a defendant
while on bail, and disruption caused by arrest and unresolved criminal
charges." n258 Absent a restraint of freedom after arrest or indictment, the
Sixth Amendment is not implicated and a defendant must rely on the Due
Process Clause protection against delay. n259 In the case of DNA warrants,
the Sixth Amendment guarantee would not attach until the John Doe was
actually apprehended through the use of a DNA warrant; therefore, the speedy
trial issue is irrelevant for the purposes of this Note.

Finally, defendants cannot argue persuasively that the Speedy Trial Act of
1974 bars the use of DNA warrants or indictments because they lead to
unacceptable postaccusation delay. While the Act specifies time limits for
the completion of the stages of a federal criminal prosecution, these do not
appear to be jeopardized by using a DNA profile to obtain a warrant or
indictment. For example, the Act provides that the information or indictment
must be filed within thirty days of arrest or the service of a summons on
the defendant. n260 This is a time requirement for all informations and
indictments and would have no special significance to the validity of one
based on a DNA profile. Further, the Act requires that a trial begin within
seventy days of the filing of the information or indictment or within
seventy days of the date on which the defendant first appears before a
judicial officer, whichever occurs later. n261 In the case of an information
or indictment based on DNA, the latter provision is likely to apply. By the
time a defendant appears before a judicial officer, his identity has been
established, and it is of no special consequence that the information or
indictment was based solely on DNA identification. Thus, speedy trial
concerns should not prevent the use of DNA warrants and indictments. n262

3. DNA Warrants and Staleness

Another issue that may stem from prolonging investigations or having
outstanding DNA warrants is staleness. Under Fourth Amendment jurisprudence,
a  [*1045]  "stale" warrant is invalid. n263 The staleness doctrine provides
that probable cause must exist at the execution of a warrant just as it must
at its issuance. n264 Thus, warrants must "be executed promptly, 'in order
to lessen the possibility that the facts upon which probable cause was
initially based do not become dissipated.'" n265 To evaluate the timeliness
of a warrant's execution, a court must consider "(1) whether the warrant was
executed in compliance with [the statutory period], and (2) if such
compliance is found, whether the probable cause which existed at the time of
the issuance of the warrant still continued at the time of its execution."
n266

DNA profiles, and hence warrants based on them, have unique qualities when
considering staleness. In the past, courts have held that a person's blood,
saliva, and hair do not become stale. n267 Given that DNA is found in these
body fluids and samples and that a DNA profile is at least comparably
long-lived, the staleness of a DNA warrant would need to be based on factors
besides the use of a DNA profile as the identifier of John Doe. Further, a
criminal may be able to change his name and appearance and obtain false
documents, but his DNA is immutable, making a warrant based on DNA
particularly resistant to staleness. Courts do look, however, to the nature
of the offense involved, so that if a warrant is for a single violation
rather than a repeated pattern of rapes, probable cause may dwindle more
rapidly. n268 Given the permanent nature of a DNA profile and the inability
of a defendant to alter his DNA, a DNA warrant would not have any particular
staleness issues beyond those of a normal warrant.

In sum, courts will likely uphold DNA warrants in the event of challenges to
their constitutionality. Under the Fourth Amendment, it is likely that such
warrants will be found sufficiently particular. Further, if used to find
matches in existing databases, such warrants are unlikely to present the
problem of unreasonable searches. DNA warrants are also unlikely to present
problems in terms of self-incrimination, speedy trials, or staleness. DNA
warrants will most likely be available for the investigation and prosecution
of rapists.

III. STATUTE OF LIMITATIONS ISSUES

For the DNA warrants to be effective tools for law enforcement, they must
not only withstand constitutional scrutiny, but also conform to the
procedural statute of limitations requirements. Each state has its own laws
regarding the  [*1046]  statute of limitations for specific crimes. For DNA
warrants to be valid, they must toll the statute of limitations. n269 After
a discussion of existing statutes of limitations requirements, this Part
will explore the use of DNA warrants to toll such statutes. In particular,
civil liberty concerns about the use of DNA warrants for this purpose will
be discussed. In addition, alternatives to the use of DNA warrants, such as
the elimination of statutes of limitations in rape cases, will be explored.

DNA warrants raise concerns because they purport to toll the statute of
limitations on rape. The concern with the tolling of the statute of
limitations is particularly relevant because the statutes "are designed to
protect individuals from having to defend themselves against charges when
the basic facts may have become obscured by the passage of time and to
minimize the danger of official punishment because of acts in the
far-distant past." n270 The statutes of limitations thus implement, at least
in part, the constitutional guarantee of a speedy trial. n271 Statutes of
limitations also give a suspect fair warning that a prosecution is pending,
a purpose that may not be served by issuing a warrant for a person with a
particular genetic profile. n272 In addition, defense attorneys worry that
by allowing DNA warrants, which rely on evidence to identify the suspect,
the floodgates would be opened. Attorney Lynn Ellen Hackbarth, for example,
worries that "no statutes of limitation would run for any crime in which
scientific evidence, such as fingerprints, is left behind." n273 On the
other hand, prosecutors argue that a DNA fingerprint is more accurate than
the usual descriptors used in warrants; suspects "can change their names,
grow beards or shave their heads, but they cannot change their genetic
code." n274 Further, a suspect is not arrested under a DNA warrant until his
DNA is matched to the profile in the warrant, thus foreclosing the
possibility of mistaken arrest. n275

Generally, the statute of limitations begins to run from the time of the
commission of an offense, or upon completion of all the elements of the
crime: n276

      [*1047]  The statute of limitations runs from the time the
     offense is committed until the prosecution is commenced, unless
     some intervening act occurs to interrupt it. In some
     jurisdictions, prosecution is "commenced" for statute of
     limitations purposes when an indictment is found or an information
     is filed. In other jurisdictions, prosecution is commenced, and
     the statute of limitations is tolled, when a complaint is filed
     and a warrant of arrest is issued; a defective warrant is
     sufficient for this purpose, especially where no objection is made
     to it until the defendant has been convicted. n277

In Wisconsin, for example, a felony prosecution for rape must be commenced
within six years after the commission of the felony. n278 For purposes of
the statute of limitations, prosecution commences when a warrant or summons
is issued, when an indictment is found, or when an information is filed.
n279 Thus, in Wisconsin, the DNA warrant serves to preserve the cause of
action against a criminal defendant. n280

Using DNA to identify a person in a warrant may be an unnecessary extension
of existing practice. Currently, DNA databases are used to try to identify
suspects in investigations. Through comparison of crime scene DNA and the
profiles stored in a database, investigators can find matches or "cold
hits." n281 Databases have been used in this manner to identify at least 538
 [*1048]  suspects nationwide. n282 Given that DNA databases are already
used to identify suspects and carry out investigations, the only purpose the
"John Doe" DNA warrants will serve will be to toll the statute of
limitations and keep actions alive.

Rather than using this procedural stopgap, the public may be better served
if law enforcement either had to carry out investigations within the
statutory period or, preferably, if there were no time limitation on rape
prosecutions at all. Under a statute of limitations, police should be
required to conduct intensive investigations within the specified time
limit; if insufficient evidence is found to prosecute a particular
defendant, the victim should have the relative closure of having her case
declared unsolved. Preferably, however, no statute of limitations should
apply to rape cases; n283 rape victims should not be penalized for the
absence of DNA evidence in their cases or for the state's failure to analyze
the DNA sample to obtain a DNA fingerprint and warrant in a timely manner.
It seems a vestige of a male-dominated society for the law to treat rapes,
which most often involve female victims, as somehow less important to solve
than other serious felonies that have no time limit on prosecution, such as
murder. n284

Thus, courts likely will hold that DNA warrants toll the statute of
limitations. In view of the arguments that such warrants are unfair to
defendants, however, it may be wise to first allow for a rape prosecution to
be brought at any time. Elimination of the statute of limitations on rapes
seems preferable to dependence on DNA warrants because it will acknowledge
the seriousness of the crimes while at the same time allowing for
investigation and prosecution of cases. DNA warrants will likely still be
useful after the elimination of statutes of limitations, but then the main
concern will be the availability of resources to analyze DNA evidence and
samples and to execute DNA warrants.

IV. FUTURE ISSUES: DRAGNETS AND A COMPREHENSIVE NATIONAL DATABASE?

A major drawback of using DNA databases to identify rapists is that
databases currently only contain DNA profiles for convicted criminals. This
means that the arrest process must include a determination of whether a
suspect is a  [*1049]  first-time offender; if he is, his DNA must be
obtained through compulsory or voluntary means because it will not be
included already in the database. There are ways to get around the problem
of only being able to identify repeat offenders using databases. These would
include (1) dragnets, in which suspects or individuals in geographic
proximity to where a crime was committed are screened to determine if their
DNA matches that of the rapist; and (2) a national DNA database that would
contain DNA profiles of all Americans, regardless of their criminal record.

One way to obtain DNA from first-time offenders is to conduct a dragnet. To
conduct a dragnet, law enforcement would "round up an entire community after
a crime has been committed, procure a DNA sample from each person, and then
compare it against the sample gathered at the scene of the crime." n285 The
United States military conducted such a suspect trawl after the two-year-old
daughter of an Army sergeant was raped and murdered in Germany. n286 By
matching DNA from a small amount of semen left on the victim's body to the
DNA of one of the men who had been in the vicinity of the victim's house,
police were able to identify and convict the perpetrator of the crime. n287

Another possible way to identify individuals who are not prior offenders and
whose DNA profiles are not included in existing databases would be to create
a national database. In an effort to facilitate roundups like the one
undertaken by the Army in Germany, the current criminal DNA database could
be expanded to include DNA samples of all citizens. Although CODIS currently
contains only the DNA profiles of convicted criminals, the DNA
Identification Act of 1994, n288 which authorized the creation of the
database, "could permit the DNA profiling of all citizens." n289

The constitutionality of a national DNA database is dubious. n290 First, DNA
samples would need to be obtained from all citizens. As discussed above,
obtaining such a sample most likely would constitute a search within the
purview of the Fourth Amendment. n291 It would be difficult even to create a
national database without violating the Fourth Amendment because there would
 [*1050]  be no exigent circumstances necessitating sampling of all citizens
n292 nor would there be individualized suspicion. n293 Further, citizens
have full privacy rights, unlike felons n294 or voluntary members of the
armed services. n295

A national DNA database, however, arguably could withstand Fourth Amendment
scrutiny. n296 If the government could argue successfully that the database
satisfied special needs beyond law enforcement, a departure from both the
probable cause and warrant requirements could be justified. n297 One
commentator has argued that the government's interest in public protection
and the lack of alternative unique identifiers would outweigh an
individual's interest in maintaining the privacy of his DNA, thus the
constitutionality of a national DNA database could be upheld. n298

Assuming that the Constitution supported the creation of a national DNA
database, the next question is whether or not such a database should be
created. n299 First, evidence of a match between crime scene DNA and DNA
from the national database likely would be admissible under Daubert because
it  [*1051]  would be both reliable and relevant. n300 However, there is a
possibility, albeit a small one, that a declared match may be erroneous due
to sample quality, flaws in the testing process, or human error introduced
during interpretation by an analyst. n301 Once evidence of a DNA match is
admitted, defendants will be hard-pressed to refute the evidence and
convince the jury that an error resulted in a mismatch given the widely
perceived view that DNA identification is largely foolproof. n302 Given the
risk of false conviction in spite of the low error rate, a national DNA
database should not be created in the absence of stringent universal quality
control procedures and regulations to prevent such systematic errors in DNA
processing and profile development.

Allowing the government to have DNA profiles on file for every U.S. citizen
seems inapposite to the premium that Americans place on privacy and freedom.
Our DNA contains information which, if put to the wrong use, could well be
the foundation for discrimination. n303 Although RFLP and PCR profiles do
not reveal a person's entire DNA sequence, markers and primers could be
employed that would still reveal relevant genetic information. n304 A deeper
concern would be that DNA samples could be preserved and later tested under
more extensive protocols. n305 Without adequate protection for the samples
or the information contained in a national DNA database, the government
would have at its disposition intimate information about each of us.
Commentators have suggested that the Constitution provides only marginal
security against abuse of DNA profile information, and thus, statutory
protection would be needed to guard against the misuse of genetic
information gleaned from a national database or the samples associated with
it. n306 It is of particular concern that of the twenty-one states that
penalize unauthorized disclosure of the information  [*1052]  contained in
the state database, eighteen fail to sanction the wrongful release of DNA
samples; the federal government also fails to penalize the unauthorized
disclosure of DNA samples. n307 Further, a national database and sample
storage system seem particularly threatening given the inadequacy of
technological safeguards; for example, hackers could enter the database and
alter profiles or gain information to sell to insurance companies and
employers. Until we have more secure computer technology, and sufficient
statutory protection for genetic information, we should avoid a nationalized
DNA identification system. n308

Future uses of DNA are not without complications. Dragnets and a national
database could increase the number of rapists brought to justice through the
use of DNA warrants beyond criminals whose DNA is already on file. Concerns
about individual privacy, however, tend to counsel against widespread
dragnetting and unchecked expansion of databases. Dragnets may present
constitutional issues unless they depend on consent or use warrants to get
DNA samples. A national database presents concerns mainly because DNA
profiles could contain information beyond that necessary for identification.
In light of the privacy concerns involved, the United States should proceed
with caution before increasing use of dragnets or creating a national
database.

CONCLUSION

DNA fingerprinting technology has been used to identify information in novel
warrants issued to toll the statute of limitations in rape cases. DNA
evidence is generally accepted as admissible, but the constitutionality of
DNA warrants themselves is a closer question. In particular, DNA warrants
raise Fourth Amendment concerns--the warrant requirement and issues of
particularity, the way in which a DNA sample will be obtained to compare
with the fingerprints in the databases, and the necessary level of
justification needed to obtain the DNA. Other potential issues include
self-incrimination under the Fifth Amendment, speedy trial considerations,
and the potential for staleness of a DNA warrant. DNA warrants will likely
withstand even rigorous constitutional scrutiny under all of these
constitutional issues. However, in spite of their constitutionality, DNA
warrants present several concerns from the point of tolling the statute of
limitations. Considering the heinous nature of the crime of rape and the
limited resources available to the criminal justice system, it would be
preferable to abolish the statute of limitations for rape prosecutions
rather than to depend on DNA warrants. Future issues may arise as a result
of expanded use of DNA databases, including the use of dragnets and the
development of a national DNA database that includes DNA fingerprints for
all Americans, both of which are of dubious constitutionality.

In spite of the apparent constitutionality of DNA warrants, the public in
 [*1053]  general and rape victims in particular may stand to gain little by
increased acceptance and use of DNA warrants. Provided that such warrants
are used only to search existing DNA databases containing profiles of
convicted felons, individuals who have not yet been convicted of a crime
will not be brought to justice through the use of DNA warrants. But using
the warrants to find suspects through dragnets likely would be prohibited by
Fourth Amendment concerns for privacy and protections against warrantless
searches and seizures.

While the scope of this Note is limited to the acceptability of DNA
warrants, there is a larger issue at stake--the privacy of one's genetic
make-up. If we allow increased use of DNA warrants, we may be opening the
door for more widespread DNA fingerprinting. It is unlikely that the
American public will find law enforcement, even in the case of such serious
crimes as rape, a sufficient justification for mass DNA testing and the
creation of a national genetic profile bank. To avoid this slippery slope,
courts should make every effort to hold DNA warrants invalid or at least
limit their use to convicted criminals with DNA on file with the states or
the FBI. In the absence of judicial protection, legislatures should step in
and provide statutory safeguards against the overextension of DNA databases
and the misuse of genetic information.

FOOTNOTES:
n1 Hans H. Chen, Prosecutors Indict DNA to Keep Rape Cases Alive,
APBNEWS.COM, Mar. 21, 2000, at
http://www.apbnews.com/cjsystem/justicenews/2000/03/21/dna0321_01.html. See
also Amy Dunn, Criminal Law-Statutes of Limitation on Sexual Assault Crimes:
Has the Availability of DNA Evidence Rendered them Obsolete?, 23 U. ARK.
LITTLE ROCK L. REV. 839, 839 (2001) (citing Jeri Elster story to a different
source). This Note will focus on violent rapes by unknown assailants, which
constitute a small proportion of rapes. See Christina E. Wells & Erin
Elliott Motley, Reinforcing the Myth of the Crazed Rapist: A Feminist
Critique of Recent Rape Legislation, 81 B.U. L. REV. 127, 129-30 (2001)
(indicating that "most women know their rapists and that only a small
portion of rapes involve violence extrinsic to the rape itself").

n2 The states employing DNA warrants include Wisconsin, New York,
California, Pennsylvania, New Mexico, Kansas, Utah, Missouri, and Texas. See
Associated Press, Unknown Man Indicted in Austin Rape Case, HOUS. CHRON.,
Nov. 5, 2000, at A45; Chen, supra note 1; Leslie Hoffman, N.M. Hopes DNA
Saves Rape Cases, ALBUQUERQUE TRIB., Apr. 21, 2000, at A3; Joe Lambe,
Crime-Solving Methods Outpace Statutes of Limitation, KAN. CITY STAR, Jan
20, 2001, at A1; Associated Press, California High Court Okays DNA Warrant
(Aug. 9, 2001) [hereinafter Associated Press, California High Court],
http://www.cnn.com/2001/LAW/08/09/dna.warrants.ap/index.html. In
Pennsylvania, the first DNA warrant was issued against a suspect charged
with attacking, raping, and severely beating a twenty-two year-old
Pennsylvania State University student on the street. Fred Cichon, DNA Leads
to Warrant for Man's Arrest in Alleged Rape of Former Penn State Student
(University Park, Pa.), DAILY COLLEGIAN, Mar. 30, 2000, 2000 WL 17590335.
Although DNA warrants theoretically could be issued based on samples from
the scene of any type of crime, this Note focuses on the use of such
warrants in rape cases.

n3 See Associated Press, California High Court, supra note 2; David Doege,
DNA Called as Good as a Name; Prosecutor Defends Using Gene Markers in
Warrant, MILWAUKEE J. SENTINEL, July 23, 2001, at 3B.

n4 See Hoffman, supra note 2. The practice of issuing an indictment based on
DNA rather than an identity originated in Kansas in 1991, but was not done
again until 1999. See Andrew C. Bernasconi, Comment, Beyond Fingerprinting:
Indicting DNA Threatens Criminal Defendants' Constitutional and Statutory
Rights, 50 AM. U. L. REV. 979, 982 (2001). "'John Doe' is typically used in
a warrant when the accused is known by an alias or by a physical
description." Bill Dedman, A Rape Defendant with No Identity, but a DNA
Profile, N.Y. TIMES, Oct. 7, 1999, at A1.

n5 See Hoffman, supra note 2.

n6 See id. One Wisconsin DNA warrant charged a John Doe in an unsolved 1994
rape. The warrant was based on the assailant's genetic profile, which was
gleaned from evidence recovered from the victim and the scene. Doege, supra
note 3.

n7 Hoffman, supra note 2. The grand jury indicted John Doe, who was
identified in the indictment only by a general physical description and a
DNA profile, on forty-four counts for these serial rapes. Other evidence in
the case included a description of the rapist as being a brown-haired, white
male, between five feet, eight inches and five feet, nine inches tall, of
medium build. Further, he was known to have snuck in through a window or
open door in each instance, after which he incapacitated the victim with a
chemical. The crimes all occurred near the university over the summer months
in the years 1991 to 1998. See id.

n8 See id. (internal quotations marks omitted).

n9 For example, in California, an arrest warrant against the person whose
genetic code matched that of a semen sample taken from the victim was issued
in August 2000 for the rape of a Sacramento woman at her apartment building.
See Associated Press, California High Court, supra note 2. In Manhattan, a
man known as the East Side rapist, was indicted for rape based on his
genetic identity. Chen, supra note 1.

n10 Hoffman, supra note 2.

n11 See id.

n12 See Associated Press, California High Court, supra note 2; Hoffman,
supra note 2. In response to the DNA warrants, some states have sought to
revisit the need for a statute of limitations in rape cases. See, e.g.,
Leslie Hoffman, Grand Jury Indicts the DNA Profile of Unknown Rapist,
ALBUQUERQUE TRIB., Apr. 20, 2000, at A1; Hoffman, supra note 2. California
has adopted a law indefinitely extending the statute of limitations in rape
cases when a DNA profile of the assailant is available. See CAL. PENAL CODE
¤ 803 (West Supp. 2002); Associated Press, California High Court, supra note
2. New York's pending bill, which is currently before Senate and Assembly
committees, will eliminate the statute of limitations for the prosecution of
rape in the first degree and sodomy in the first degree and applies to
offenses committed on or after the effective date. S.B. 1787, 2001 Leg.,
224th Sess. (N.Y. 2001); A.B. 2413, 2001 Leg., 224th Sess. (N.Y. 2001). The
Wisconsin Legislature is considering two bills: One would abolish the
statute of limitations on sex crimes A.B. 291, 2001 Leg., 95th Sess. (Wis.
2001), and the other would legalize a warrant based solely on a DNA profile.
S.B. 55, 2001 Leg., 95th Sess. (Wis. 2001); see also Hoffman, supra note 2.

n13 Hoffman, supra note 2. Staleness refers to the lack of probable cause at
the time of a warrant's execution. See discussion infra Subsection II.B.3.

n14 Hoffman, supra note 2.

n15 DNA databases are discussed infra Section II.D.

n16 For a discussion of the existing backlog, see infra notes 135-40 and
accompanying text.

n17 It should be noted that DNA fingerprinting can be used not only to
apprehend suspects, but also to exonerate innocent suspects. DNA testing
ultimately clears approximately one-third of primary rape suspects. See
Angus J. Dodson, Comment, DNA "Line-Ups" Based on a Reasonable Suspicion
Standard, 71 U. COLO. L. REV. 221, 225 (2000).

n18 1 WILLIAM T. KEETON & JAMES L. GOULD, BIOLOGICAL SCIENCE 213-15 (5th ed.
1993).

n19 Id.

n20 Mature red blood cells do not contain DNA, but white blood cells, which
are also found in a blood sample, do contain normal amounts of DNA. See
Richard A. Nakashima, DNA Evidence in Criminal Trials: A Defense Attorney's
Primer, 74 NEB. L. REV. 444, 445 n.1 (1995).

n21 See id. at 445.

n22 1 KEETON & GOULD, supra note 18, at 219.

n23 Id.

n24 Nakashima, supra note 20, at 445.

n25 Humans have forty-six chromosomes in their somatic cells ("all the cells
of an organism except the gamete-producing germ cells"), but only
twenty-three in gametes ("sex cells, like sperm and egg"). 1 KEETON & GOULD,
supra note 18, at 213-15. The chromosomes in somatic cells are paired, with
one-half of each pair deriving from an individual's father and the other
half from the mother. Id.

n26 Genes are sequences of bases that encode protein. Genes are organized
linearly on one or more chromosomes, collectively referred to as the genome.
Id. at 214.

n27 See Sue Rosenthal, My Brother's Keeper: A Challenge to the Probative
Value of DNA Fingerprinting, 23 AM. J. CRIM. L. 195, 198 (1995) (citing PAUL
R. BILLINGS, DNA ON TRIAL: GENETIC IDENTIFICATION AND CRIMINAL JUSTICE 3
(1992)).

n28 Nakashima, supra note 20, at 446.

n29 An individual region consisting of a few thousand base pairs is called a
locus, with the plural being "loci." Id.

n30 Id.

n31 Dodson, supra note 17, at 227-28. The process of comparing DNA profiles
is described more fully infra notes 45-77 and accompanying text.

n32 Nakashima, supra note 20, at 446.

n33 Dodson, supra note 17 at 228.

n34 Id.

n35 Nakashima, supra note 20, at 446.

n36 Id.

n37 Id. at 447.

n38 See David E. Housman, DNA on Trial--The Molecular Basis of DNA
Fingerprinting, 332 NEW ENG. J. MED. 534, 534 (1995).

n39 See Housman, supra note 38, at 534; Nakashima, supra note 20, at 447.

n40 Housman, supra note 38, at 534.

n41 Nakashima, supra note 20, at 447.

n42 Id. at 447-48. These solutions include phenol, chloroform, and isoamyl.
Id. at 448 n.9.

n43 These pieces are hundreds to thousands of base pairs in length. Id. at
448.

n44 Id.

n45 Id.

n46 Id.; see supra notes 35-37 and accompanying text.

n47 Nakashima, supra note 20, at 448.

n48 Id. Typically, gels will contain DNA samples of standardized molecular
weights, a crime scene DNA sample, the victim's DNA, and one or more DNA
samples from suspects. Gels contain up to twenty-five lanes, and thus,
additional controls can be added to ensure the procedure worked properly.
Id. at 449.

n49 Id. at 448.

n50 Id.

n51 Id.

n52 Id.

n53 Id.

n54 The probes are labeled, usually by making them radioactive. Id. at
448-49.

n55 Id. at 449.

n56 Id.

n57 Id.

n58 Id.

n59 Rachel Nowak, Forensic DNA Goes to Court with O.J., 265 SCIENCE 1352,
1353 (1994).

n60 Nakashima, supra note 20, at 447.

n61 Id.

n62 Id. at 447. Because the PCR process amplifies DNA, meaning it creates
multiple copies of a particular region, it can be used to analyze small
samples. 1 KEETON & GOULD, supra note 18, at 268.

n63 Nowak, supra note 59, at 1353.

n64 1 KEETON & GOULD, supra note 18, at 268. In the case of forensic
investigations, this region of interest can contain a VNTR locus. Nakashima,
supra note 20, at 446-47.

n65 1 KEETON & GOULD, supra note 18, at 268. Primers are short synthetic
sequences of DNA. These primer sequences correspond to the base sequences
flanking each end of the region of interest. Id.

n66 By using primers that bind only to a particular sequence of interest,
researchers can ensure that only the targeted gene or region is amplified. A
match occurs when the PCR products from the crime scene sample and the
suspect's DNA are the same size. Nakashima, supra note 20, at 447 n.4.

n67 1 KEETON & GOULD, supra note 18, at 268.

n68 Id. DNA polymerase is an enzyme complex that catalyzes the replication
of DNA. See Nakashima, supra note 20, at 447.

n69 1 KEETON & GONLD, supra note 18, at 268.

n70 For information on determining whether there is a match between two
different DNA samples, see supra notes 30-37 and accompanying text.

n71 Rosenthal, supra note 27, at 199-200.

n72 Nowak, supra note 59, at 1354.

n73 Id.

n74 See Associated Press, California High Court, supra note 2.

n75 Richard Willing, Study: Many Rapists Were Thieves First, Results May
Lead to Taking DNA for Lesser Crimes, USA TODAY, July 10, 2000, at 3A. DNA
databases are discussed infra Section I.D.

n76 For further discussion of evidentiary problems encountered in relation
to DNA fingerprinting, see generally Dan L. Burk, DNA Fingerprinting:
Possibilities and Pitfalls of a New Technique, 28 JURIMETRICS J. 455, 464-71
(1988); Judith M. Gordon, DNA Identification Tests--On the Way Toward
Judicial Acceptance, 6 J. SUFFOLK ACAD. L. 1, 12-20 (1989); and Janet C.
Hoeffel, Note, The Dark Side of DNA Profiling: Unreliable Scientific
Evidence Meets the Criminal Defendant, 42 STAN. L. REV. 465, 495-526 (1990).

n77 George J. Annas, Setting Standards for the Use of DNA-Typing Results in
the Courtroom--The State of the Art, 326 NEW ENG. J. MED. 1641, 1641 (1992).

n78 See Hoeffel, supra note 76, at 476.

n79 See, e.g., United States v. Two Bulls, 918 F.2d 56, 61 (8th Cir. 1990)
(vacating a conviction because of erroneous admission of DNA identification
evidence that was gathered using testing procedures whose adequacy was
undetermined); see also Nowak, supra note 59, at 1354 (noting that
proficiency of testing facility was raised in a case in which facility had
previously incorrectly matched DNA profiles of two samples from each of
fifty batches of simulated forensic samples and discussing legislation aimed
at developing standards for crime laboratories conducting DNA testing).

n80 See, e.g., United States v. Jakobetz, 747 F. Supp. 250, 262 (D. Vt.
1990), aff'd, 955 F.2d 786 (2d Cir. 1992) (accepting database DNA profiling
as sufficiently reliable); Commonwealth v. Curnin, 565 N.E.2d 440, 442-43
(Mass. 1991) (stating a reluctance to accept novel theory of numerical
acceptance that has not yet achieved general acceptance in the scientific
community); Caldwell v. State, 393 S.E.2d 436, 444 (Ga. 1990) (indicating a
preference for use of the database itself instead of more liberal general
population theories); see also Nowak, supra note 59, at 1352-54 (discussing
two issues affecting statistical significance of DNA matches--frequency used
in calculating the odds of a match for smaller subpopulations and number of
markers or probes employed in creating a DNA fingerprint). For a thorough
discussion of challenges to the numerical assessments of DNA testing used to
convey DNA analysis results to the jury, see generally Rosenthal, supra note
27.

n81 See, e.g., Nowak, supra note 59, at 1354 (noting that, under
California's Frye-Kelly standards, evidence is admissible "only if it is
derived from methods that are supported by scientific consensus"). Although
there is no consensus among state courts that have considered the
admissibility of DNA evidence, the trend is toward admissibility. See, e.g.,
Andrews v. State, 533 So. 2d 841, 850-51 (Fla. Dist. Ct. App. 1988);
Caldwell, 393 S.E.2d at 440-42; Cobey v. State, 559 A.2d 391, 398 (Md.
1989); State v. Schwartz, 447 N.W.2d 422, 426 (Minn. 1989); People v.
Wesley, 183 A.D.2d 75, 79-80 (N.Y. Sup. Ct. 1992); State v. Pennington, 393
S.E.2d 847, 853 (N.C. 1990); Ohio v. Pierce, 597 N.E.2d 107, 115 (Ohio
1992); Commonwealth v. Rodgers, 605 A.2d 1228, 1236 (Pa. Super. Ct. 1992);
State v. Ford, 392 S.E.2d 781, 784 (S.C. 1990); Kelly v. State, 824 S.W.2d
568, 574 (Tex. Ct. App. 1992); Spencer v. Commonwealth, 384 S.E.2d 775, 783
(Va. 1989).

n82 Howard Cooke, DNA and Police Files, 342 LANCET 130, 130 (1993).

n83 See Daniel E. Koshland, Jr., DNA Fingerprinting and Eyewitness
Testimony, 256 SCIENCE 593, 593 (1992). Eyewitness testimony, for example,
is widely accepted in the courtroom, yet it has been demonstrated to be
"notoriously unreliable--in some circumstances more often wrong than right."
Russell Higuchi, Human Error in Forensic DNA Typing, 48 AM. J. HUM. GENETICS
1215, 1215 (1991). All evidence, not just DNA evidence, is subject to human
error, and thus, it "seems absurd to have defendants face incriminating,
possibly unreliable, eyewitness testimony but not have exonerating DNA
evidence admitted that is in general more reliable." Id. The scientific
validity of conventional fingerprinting, considered a "virtually
unassailable prosecutorial tool for 90 years," was recently questioned by a
federal court because it had not been subject to sufficient testing. See
United States v. Llera Plaza, 179 F. Supp.2d 492, 515-18 (E.D. Pa. 2002)
(acknowledging the uniqueness and permanence of fingerprints but disallowing
expert testimony regarding whether latent fingerprint matches the rolled
fingerprint of a particular individual and "hence is, or is not, the
fingerprint of that person"); Andy Newman, Judge Rules Fingerprints Cannot
Be Called a Match, N.Y. TIMES, Jan. 11, 2002, at A14.

n84 See Higuchi, supra note 83, at 1215.

n85 293 F. 1013, 1014 (D.C. Cir. 1923). Frye was the first case to address
the issue of the admissibility of scientific evidence. In Frye, the D.C.
Circuit refused to admit the results of a lie detector test based on
systolic blood pressure. Id. The systolic blood pressure test had not yet
gained the requisite standing and scientific recognition among psychological
and physiological authorities to justify admitting it as evidence. Id. The
traditional standard for the admissibility of evidence based on new
technology is known as the Frye rule:

     Just when a scientific principle or discovery crosses the line
     between the experimental and demonstrable stages is difficult to
     define. Somewhere in this twilight zone the evidential force of
     the principle must be recognized, and while courts will go a long
     way in admitting expert testimony deduced from a well-recognized
     scientific principle or discovery, the thing from which the
     deduction is made must be sufficiently established to have gained
     general acceptance in the particular field in which it belongs.

Id. Although Frye was a court of appeals decision, the "general acceptance"
test it promulgated became the standard for admitting scientific evidence.
See Jennifer Sue Deck, Note, Prelude to a Miss: A Cautionary Note Against
Expanding DNA Databanks in the Face of Scientific Uncertainty, 20 VT. L.
REV. 1057, 1075 (1996). Thus, after Frye, a court could admit scientific
evidence only if the theory or technique had gained general acceptance in
the relevant field. For further discussion of the Frye test and arguments
for and against its use, see Brian Huseman, Note, Taylor v. State, Rule 706,
and the DNA Database: Future Directions in DNA Evidence, 22 OKLA. CITY U. L.
REV. 397, 410 (1997).

n86 See generally Ricardo Fontg, Comment, DNA Fingerprinting: A Guide to
Admissibility and Use, 57 MO. L. REV. 501, 523-25 (1992).

n87 509 U.S. 579 (1993).

n88 Frye, 293 F. at 1013-14; Deck, supra note 85, at 1076. The Rules treat
novel scientific evidence like other evidence and deem it admissible if it
is relevant to the trier of fact. See FED R. EVID. 702. Under this approach,
courts may admit evidence from a source or technique that is not generally
accepted. Proponents of this approach believe the adversarial nature of the
judicial process will mitigate any possible danger in allowing the jury to
assess the reliability of novel scientific evidence. See, e.g., Charity Lynn
Clayborn, Note, Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988),
12 U. ARK. LITTLE ROCK L.J. 543, 551-52 (1989-90).

n89 Compare Christopherson v. Allied-Signal Corp., 939 F.2d 1106, 1111,
1115-16 (5th Cir. 1991) (holding that Frye and Rules coexist), with United
States v. Williams, 583 F.2d 1194, 1197-1200 (2d Cir. 1978) (applying Rule
702 test instead of more stringent Frye test), People v. Kelly, 549 P.2d
1240, 1244 (Cal. 1976) (holding a proponent of admissibility of a scientific
technique under Frye test must establish technique's reliability and that
witness testifying as to reliability is qualified expert), and United States
v. Jakobetz, 747 F. Supp. 250, 254-55 (D. Vt. 1990) (listing fourteen
factors for admissibility of scientific evidence).

n90 See Daubert, 509 U.S. at 579.

n91 Id. at 589 (stating that "under the Rules the trial judge must ensure
that any and all scientific testimony or evidence admitted is not only
relevant, but reliable").

n92 Id. at 592-95. Rule 702 provides: "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise." FED. R. EVID. 702.

n93 See Daubert, 509 U.S. at 593.

n94 Id.

n95 Id. at 594.

n96 Id. at 594-95.

n97 Id. at 593-94.

n98 See Edward J. Imwinkelreid, The Debate in the DNA Cases over the
Foundation for the Admission of Scientific Evidence: The Importance of Human
Error as a Cause of Forensic Misanalysis, 69 WASH. U. L.Q. 19, 20 (1991);
Deck, supra note 85, at 1077. Even under the Frye test and the Rules test,
the great majority of courts that have considered the issue of the
admissibility of DNA fingerprint evidence held the evidence admissible. See
Fontg, supra note 86, at 535. For some examples of courts upholding DNA
fingerprints under Frye, see Snowden v. State, 574 So. 2d 960, 966 (Ala.
Crim. App. 1990); Smith v. Deppish, 807 P.2d 144, 159 (Kan. 1991); State v.
Schwartz, 447 N.W.2d 422, 426 (Minn. 1989); and Mandujano v. State, 799
S.W.2d 318, 321-22 (Tex. Ct. App. 1990). For an example of a court admitting
DNA profiling evidence under the Rules, see Burleson v. State, 802 S.W.2d
429, 441 (Tex. Ct. App. 1991).

n99 Proficiency testing involves a determination of the accuracy of the DNA
profiling results of a particular laboratory. See Deck, supra note 85, at
1083. Thus far, testing has been done only on a nonblind basis with large
samples of DNA and with full disclosure about the source of the sample; more
rigorous testing can and should be conducted. See Jonathan J. Koehler, Error
and Exaggeration in the Presentation of DNA Evidence at Trial, 34
JURIMETRICS J. 21, 24-25 (1993) (stating that, although some testing has
been done, blind tests need to be conducted using samples representative of
those found at crime scenes to measure adequately laboratory proficiency);
Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 JURIMETRICS J.
449, 462 (1993) (calling for systematic testing of laboratories and
publication of results in scientific journals). In addition, a voluntary
accreditation program has been established for laboratories that perform DNA
analysis. NAT'L RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE 1, 102
(1992).

n100 See generally R. Stephen Kramer, Admissibility of DNA Statistical Data:
A Proliferation of Misconception, 30 CAL. W. L. REV. 145 (1993) (discussing
several articles on, and cases involving, DNA evidence).

n101 See, e.g., State v. Anderson, 881 P.2d 29, 43 (N.M. 1994); see also
William C. Thompson, Evaluating the Admissibility of New Genetic
Identification Tests: Lessons from the "DNA War," 84 J. CRIM. L. &
CRIMINOLOGY 22, 45 (1993) (claiming that in "the majority of cases, courts
have held that disputes over the matching procedure raise issues going to
the weight, rather than the admissibility, of the DNA evidence").

n102 See, e.g., Snowden, 574 So. 2d at 966; Deppish, 807 P.2d at 159;
Schwartz, 447 N.W.2d at 428; Mandujano, 799 S.W.2d at 321-22.

n103 For a discussion about issues surrounding DNA typing and its use as
evidence in criminal cases, see generally Edward J. Imwinkelreid & D.H.
Kaye, DNA Typing: Emerging or Neglected Issues, 76 WASH. L. REV. 413 (2001)
(discussing, among other issues, the propriety of dragnets and use of DNA
evidence to carve out exception to statute of limitations).

n104 In the O.J. Simpson case, for example, the defense argued that there
was a lack of scientific consensus about how to calculate the odds of a
match between the suspect's DNA and the DNA purified from the crime scene.
See Nowak, supra note 59, at 1352.

To interpret the results of a DNA test, the probability of a false match
must be calculated. See Ryan McDonald, Juries and Crime Labs: Correcting the
Weak Links in the DNA Chain, 24 AM. J.L. & MED. 345, 352 (1998). To
calculate the odds of a false match, scientists first determine the
frequency with which a particular DNA fingerprint is likely to occur in the
general population. Id. Scientists then use the likelihood of a pattern
appearing in the general population to infer the likelihood that the DNA of
an individual other than the defendant could match the crime sample. Id.
Although a crime lab would need the DNA fingerprints of every person in the
world to determine exactly the likelihood of a false match, random
population samples are used to approximate the likelihood. Id.

n105 McDonald, supra note 104, at 354-59.

n106 Rosenthal, supra note 27, at 200.

n107 Id.

n108 Id.; see McDonald, supra note 104, at 352.

n109 1 KEETON & GOULD, supra note 18, at 17.

n110 Rosenthal, supra note 27, at 200.

n111 McDonald, supra note 104, at 352.

n112 See McDonald, supra note 104, at 352; Nowak, supra note 59, at 1353.
For a critique of the ceiling principle and its use in comparing evidentiary
DNA samples against criminal databases, see generally N.E. Morton, The
Forensic DNA Endgame, 37 JURIMETRICS J. 477 (1997).

The National Research Council (NRC) has published two reports to help
explicate the statistics surrounding DNA testing, including the ceiling
principle. For a review of the most recent report, see Geoffrey K. Chambers
et al., Forensic DNA Profiling: The Importance of Giving Accurate Answers to
the Right Questions, 8 CRIM. L.F. 445 (1997) (reviewing NAT'L RESEARCH
COUNCIL, THE EVALUATION OF FORENSIC DNA EVIDENCE (1996)).

n113 Possible reference populations include West African, German, and
Vietnamese populations. Nowak, supra note 59, at 1353. The databases would
"be used to calculate the frequency of occurrence of different DNA markers
in the various ethnic groups." Id.

n114 McDonald, supra note 104, at 353. Until the establishment of the
reference databases, the NAS committee has recommended using the larger of
either the highest marker frequencies in at least three major ethnic
groups--Asian, Black, and Hispanic--or ten percent. This stopgap measure is
still being used because the reference databases are under construction. See
Nowak, supra note 59, at 1353.

n115 Nowak, supra note 59, at 1353.

n116 Rosenthal, supra note 27, at 200.

n117 See, e.g., Peter Donnelly & Richard D. Friedman, DNA Database Searches
and the Legal Consumption of Scientific Evidence, 97 MICH. L. REV. 931,
941-66 (1999) (arguing that NRC's methods undervalue probative force of DNA
match made through database trawl).

n118 See McDonald, supra note 104, at 354-56. Medical standards for the
diagnosis of strep throat are more stringent than those for laboratories
conducting DNA testing for the criminal justice system. Crime Labs Get
Ignored and Criminals Go Free, USA TODAY, Aug. 22, 1996, at 12A, available
at 1996 WL 2066515. For example, the DNA lab in Kern County, California is
in a refurbished dog kennel and has such limited space that in one case
crucial evidence was stored in the men's restroom. Peter Eisler,
California's Crisis in a Word: O.J.; Labs Point to Case in Their Campaign
for More Funding, USA TODAY, Aug. 20, 1996, at 7A, available at 1996 WL
2066267.

n119 McDonald, supra note 104, at 356.

n120 Id.

n121 Aaron P. Stevens, Note, Arresting Crime: Expanding the Scope of DNA
Databases in America, 79 TEX. L. REV. 921, 922 (2001).

n122 Paul E. Tracy & Vincent Morgan, Big Brother and His Science Kit: DNA
Databases for 21st Century Crime Control?, 90 J. CRIM. L. & CRIMINOLOGY 635,
665 (2000).

n123 For more detailed discussions of the issues surrounding DNA databases
and their use in law enforcement, see Michelle Hibbert, DNA Databanks: Law
Enforcement's Greatest Surveillance Tool?, 34 WAKE FOREST L. REV. 767,
771-72 (1999); Tracy & Morgan, supra note 122, at 645-46; Stevens, supra
note 121, at 943-45.

n124 Stevens, supra note 121, at 923.

n125 See id. at 923-24.

n126 All fifty states have statutes authorizing the creation of state DNA
databases, outlining procedures for taking samples, indicating from whom
samples should be taken, and discussing other regulatory issues. See ALA.
CODE ¤¤ 36-18-20-39 (West 2001); ALASKA STAT. ¤ 44.41.035 (Michie 2000);
ARIZ. REV. STAT. ANN. ¤¤ 13-4438, 31-281, 41-2418-2419 (West 1991 & Supp.
2001); ARK. CODE ANN. ¤¤ 12-12-1101-1120 (Michie 1999 & Supp. 2001); CAL.
PENAL CODE ¤¤ 295-300.3 (West 1999 & Supp. 2002); COLO. REV. STAT. ¤
17-2-201(5)(g) (2000); CONN. GEN. STAT. ¤ 54-102g-1 (2001); DEL. CODE ANN.
tit. 29, ¤ 4713 (1997); FLA. STAT. ANN. ¤ 943.325 (West 2001 & Supp. 2002);
GA. CODE ANN. ¤ 24-4-60 (1995 & Supp. 2001); HAW. REV. STAT. ¤ 706-603 (1993
& Supp. 2000); IDAHO CODE ¤ 19-5507 (Michie 1997 & Supp. 2001); 730 ILL.
COMP. STAT. 5/5-4-3 (2001); IND. CODE ¤ 10-1-9--10 (1998 & supp. 2001); IOWA
CODE ¤ 13.10 (2001); KAN. STAT. ANN. ¤ 21-2511 (1995 & Supp. 2000); KY. REV.
STAT. ANN. ¤ 17.170 (Michie 1996 & Supp. 2000); LA. REV. STAT. ANN. ¤ 15:609
(West Supp. 2002); ME. REV. STAT. ANN. tit. 25, ¤ 1574 (West Supp. 2001);
MD. ANN. CODE art. 88B, ¤ 12A (1998 & Supp. 2000); MASS. GEN. LAWS ANN. ch.
22E (West Supp. 2001); MICH. COMP. LAWS ANN. ¤ 750.520m (West 1991 & Supp.
2001); MINN. STAT. ANN ¤ 609.117 (West Supp. 2002); MISS. CODE ANN. ¤
45-33-37 (1972 & Supp. 2001); MO. ANN. STAT. ¤ 650.055 (West 2000); MONT.
CODE ANN. ¤ 44-6-102 (1997); NEB. REV. STAT. ¤ 29-4104 (Supp. 2001); NEV.
REV. STAT. ANN. ¤ 176.0913 (Michie 2001); N.H. REV. STAT. ANN. ¤ 632-A:21
(Supp. 2000); N.J. STAT. ANN. ¤ 53:1-20.20 (West 2001); N.M. STAT. ANN. ¤
29-16-2-3 (Michie Supp. 2001); N.Y. EXEC. LAW ¤ 995-c (Consol. 1995 & Supp.
2001); N.C. GEN. STAT. ¤ 15A-266.4 (1999); N.D. CENT. CODE ¤ 31-13-03 (1997
& Supp. 2001); OHIO REV. CODE ANN. ¤ 2901.07 (West 1997 & Supp. 2001); OKLA.
STAT. ANN. tit. 74, ¤ 150.27a (West 1995 & Supp. 2001); OR. REV. STAT. ¤
137.076 (1999); 35 PA. CONS. STAT. ANN. ¤ 7651.306 (West Supp. 2001); R.I.
GEN. LAWS ¤ 12-1.5-.8 (Michie 2000); S.C. CODE ANN. ¤ 23-3-620 (West Supp.
2001); S.D. CODIFIED LAWS ¤ 23-5-14 (Michie 1998 & Supp. 2001); TENN. CODE
ANN. ¤ 38-6-113 (Michie 1997 & Supp. 2001); TEX. GOV'T CODE ANN. ¤ 411.148
(Vernon 1998 & Supp. 2002); UTAH CODE ANN. ¤ 53-10-404 (Supp. 2001); VT.
STAT. ANN. tit. 20, ¤ 1933 (2000); VA. CODE ANN. ¤ 19.2-310.2 (1950 & Supp.
2001); WASH. REV. CODE ANN. ¤ 43.43.754 (West 1998 & Supp. 2002); W. VA.
CODE ANN. ¤ 15-2b-6 (Michie 2000 & Supp. 2001); WIS. STAT. ANN. ¤ 165.76
(West 1997 & Supp. 2001); WYO. STAT. ANN. ¤ 7-19-403 (2001). Minnesota and
Wisconsin have the two broadest statutes, with Minnesota having no
specifications regarding eligible crimes and Wisconsin requiring DNA samples
from everyone who is incarcerated, on probation, paroled, or found not
guilty because of mental illness. MINN. STAT. ANN. ¤ 299C.09 (1999); WIS.
STAT. ANN. ¤ 165.76 (West 1997 & Supp. 2001).

Five states--New Hampshire, Louisiana, Hawaii, Iowa, and Idaho--did not have
operational data-bases as of July 2001. Joyce Howard Price, DNA Backlog
Slows Judicial Process; Labs Cannot Keep Pace with Test Requests, WASH.
TIMES, July 22, 2001, at A1.

n127 Some states limit inclusion in the DNA database to convicted sex
offenders. See, e.g., COLO. REV. STAT. ¤ 17-2-201(5)(g); GA. CODE ANN. ¤
24-4-60; 730 ILL. COMP. STAT. 5/5-4-3; KY. REV. STAT. ANN. ¤ 17.170; LA.
REV. STAT. ANN. ¤ 15:609; MISS. CODE ANN. ¤ 45-33-37; N.H. REV. STAT. ANN. ¤
632-A:21; N.D. CENT. CODE ¤ 31-13-03; TENN. CODE ANN. ¤ 38-6-113.

At least four states--Alabama, New Mexico, Virginia, and Wyoming--include
all felons in the DNA database. See ALA. CODE ¤ 36-18-24; MINN. STAT. ANN. ¤
299C.09; N.M. STAT. ANN. ¤ 29-16-6; VA. CODE ANN. ¤ 19.2-310.2; WYO. STAT.
ANN. ¤ 7-19-403.

n128 Several states include murder and other violent crimes on the list of
crimes that necessitate inclusion in the database. See, e.g., CAL. PENAL
CODE ¤ 295; ME. REV. STAT. ANN. tit. 25 ¤ 1574; MD. ANN. CODE art. 88B, ¤
12A; MICH. COMP. LAWS ¤ 750.520m; N.Y. EXEC. LAW ¤ 995; OHIO REV. CODE ANN.
¤ 2901.07; S.D. CODIFIED LAWS ¤ 23-5-14; UTAH CODE ANN. ¤ 53-10-404; W. VA.
CODE ¤ 15-2b-6.

n129 At least three states--Kentucky, Louisiana, and Mississippi--require
DNA samples from those arrested for sexual felonies; Idaho requires the
prosecutor to show that DNA sampling is in the best interest of justice.
IDAHO CODE ¤ 19-5507 (Michie 1997 & Supp. 2000); KY. REV. STAT. ANN. ¤
17.170 (Michie 1996 & Supp. 2000); LA. REV. STAT. ANN. ¤ 15:609 (West Supp.
2002); MISS. CODE ANN. ¤ 45-33-37 (1972 & Supp. 2001). Deborah F. Barfield,
Comment, DNA Fingerprinting--Justifying the Special Need for the Fourth
Amendment's Intrusion into the Zone of Privacy, 6 RICH. J.L. & TECH. 27, 6
(2000), at http://www.richmond.edu/jolt/v6;5/note2.html.

n130 See Hibbert, supra note 123, at 771-72.

n131 42 U.S.C. ¤¤ 3751, 3753, 3793, 3796kk, 3796kk-1 to -6, 3797,
14131-14134 (1994) amended by DNA Analysis Backlog Elimination Act of 2000,
42 U.S.C.A. ¤¤ 14132-14135e (West Supp. 2001). 42 U.S.C.A. ¤ 14135(a)
specifically provides:

     (a) Authorization of grants
     The Attorney General may make grants to eligible States for use by
     the State for the following purposes:

          (1) To carry out, for inclusion in the Combined DNA
          Index System of the Federal Bureau of Investigation, DNA
          analyses of samples taken from individuals convicted of
          a qualifying State offense (as determined under
          subsection (b)(3)).
          (2) To carry out, for inclusion in such Combined DNA
          Index System, DNA analyses of samples from crime scenes.

          (3) To increase the capacity of laboratories owned by
          the State or by units of local government within the
          State to carry out DNA analyses of samples specified in
          paragraph (2).

Id.

n132 See 28 U.S.C. ¤ 531 (Supp. V 1999) (requiring that to be eligible for
federal grants, state must "require that each person convicted of a felony
of a sexual nature shall provide to appropriate State law enforcement
officials, as designated by the chief executive officer of the State, a
sample of blood, saliva, or other specimen necessary to conduct a DNA
analysis consistent with the standards established for DNA testing by the
Director of the Federal Bureau of Investigation").

n133 See id. ¤ 811(b)(1)(B), 110 Stat. at 1313.

n134 See Barfield, supra note 129, at P7. The 106th Congress considered a
bill to expand CODIS and give the FBI the discretion to define what offenses
qualify for inclusion in the database and to set standards for the analysis
and removal of data. See Violent Offender DNA Identification Act, H.R. 2810,
106th Cong. ¤ 3(d)(2)(A) (1999); see also S. 903, 106th Cong. ¤ 3(d)(2)(A)
(1999) (representing the Senate version of H.R. 2810).

n135 States Get $ 30M to Analyze DNA; Should Eliminate Backlog, Help Solve
Crimes, DAYTON DAILY NEWS, Aug. 2, 2001, at 3B [hereinafter States Get $
30M].

n136 Chen, supra note 1. When either (1) a convict whose DNA should be in
the database has not even had a sample drawn; or (2) a DNA sample has been
obtained from a convict, but has not yet been processed, the fingerprint
cannot be included in the DNA database. The difference between the number of
eligible samples and the number of samples actually included in the database
is considered a backlog. Further, there are unprocessed samples from crime
scenes that cannot be compared to the DNA fingerprints in the database. Id.
The development of massive backlogs is understandable when one considers
that in Los Angeles, for example, "the Police Department buys a 40-foot
refrigerated trailer truck every six months, just to hold DNA evidence."
Dedman, supra note 4.

n137 Chen, supra note 1. When New York expanded the list of crimes for which
convicts must give DNA samples, it created a pool of 100,000 samples to be
processed. Id.

n138 States Get $ 30M, supra note 135. The grants will pay for the analysis
of about 500,000 samples. Id. A federal panel convened by former Attorney
General Janet Reno-the National Commission on the Future of DNA
Evidence-reported that 450,000 DNA samples were awaiting processing in
November 1998. See Chen, supra note 1.

n139 States Get $ 30M, supra note 135.

n140 As of March 2000, 45,200 DNA samples from convicted murderers and
rapists had been entered, but 24,800 awaited entry into the California
database. Chen, supra note 1. An additional $ 5,000,000 in funding for new
equipment and technicians facilitated the elimination of the backlog, and
there are now over 200,000 profiles in the California database. Charlie
Goodyear & Erin Hallissy, State Boosts Felon's DNA Database; Crime-Fighting
Cache Becomes Largest in U.S., S.F. CHRON., June 25, 2001, at A1.

n141 Deck, supra note 85, at 1059 & n.14. Privacy and other concerns
regarding a national database are discussed infra Part IV.

n142 Stevens, supra note 121, at 924.

n143 As of February 1997, the Department of Defense's DNA Registry and
Repository, as the military database is called, contains 1.65 million
profiles. Id. at 924-25.

n144 Id. at 925 (citing Privacy Risk Seen in DNA Databanks, OMAHA WORLD
HERALD, Nov. 7, 1994, at 1, available at 1994 WL 8627395).

n145 See Eric T. Juengst, I-DNA-fication, Personal Privacy, and Social
Justice, 75 CHI.-KENT L. REV. 61 (1999).

n146 Id. at 64.

n147 Editorial, DNA, not D.O.A., 21 NATURE GENETICS 243, 244 (1999).
Researchers have made attempts to access state databases to obtain genetic
information about convicts.

Additional privacy issues surface regarding how long an eligible person's
DNA should remain in a database. In instances in which a suspect's DNA is
tested to determine if it matches that of the John Doe in a warrant,
agencies should pledge to destroy the samples of those not convicted
following case resolution, as well as to ensure anonymity at all times. See
id. at 244. Such procedural safeguards are necessary to protect those
suspects who are innocent from having their DNA used to investigate future
crimes without some level of suspicion. Further issues regarding the
implications of expanding CODIS to include DNA samples from all U.S.
citizens are addressed infra Part IV.

n148 See Juengst, supra note 145, at 65-66.

n149 Dodson, supra note 17, at 229.

n150 See id. at 229-30. The concern is that as DNA fingerprinting technology
advances, it may enable investigators to identify likely perpetrators of
crime by virtue of their genetic characteristics. See Barfield, supra note
129, at P33. For example, if scientists identify a gene that predisposes an
individual to commit a violent crime, then investigators could screen
individuals before they committed such crimes.

n151 See Editorial, DNA, not D.O.A., supra note 147, at 244. Since 1976 in
Illinois, the number of exonerations on death row outnumbered the executions
thirteen to twelve; this led the Governor to declare a moratorium on
executions. Press Release, Governor George H. Ryan, Governor Ryan Declares
Moratorium on Executions, Will Appoint Commission to Review Capital
Punishment System (Jan. 31, 2000), available at
http://www.state.il.us/gov/press/00/Jan/morat.htm.

n152 Stevens, supra note 121, at 942. In one case, a California man, Kevin
Green, was convicted and imprisoned for beating his wife and killing their
fetus. Green's wife, who suffered permanent brain damage and memory loss in
the beating, falsely identified him. A DNA database search more than sixteen
years later exonerated Green and instead identified a convicted rapist as
the perpetrator. Mark Schoofs, Genetic Justice, VILLAGE VOICE (N.Y.), Nov.
18, 1997, at 44, available at 1997 WL 11417544.

n153 David Doege, Rape Case Hinging on DNA Flawed, Lawyer Says; Legal
Motions Begin After Inmate Accused in 1994 Sexual Assault, MILWAUKEE J.
SENTINEL, July 9, 2001, at A1; Goodyear & Hallissy, supra note 140 at A1.

n154 Most rapists began their lives of crime as burglars, thus in states
where all convicts are placed on the database, some individuals who had
previously committed nonviolent crimes may be convicted of rape thanks to
the combined use of DNA warrants and databases. See Goodyear & Hallissy,
supra note 140 at A1. A study of Virginia's convict databases show that "at
least 40% of men who ultimately are arrested for rape begin their criminal
careers with property crimes such as burglary and petty theft." Willing,
supra note 75. These findings, based on the first U.S. analysis of the link
between sex offenses and property crimes, confirmed the results of a 1998
British study that found that over seventy-five percent of rapists in the
United Kingdom were burglars first. Preliminary results of a study currently
underway in Florida show that over half of Florida's sex offenders were
previously thieves or burglars. Id.

n155 DNA testing can take between three months to a year. In addition to the
time involved, DNA fingerprinting has a price tag of about $ 50 for blood
and saliva and up to $ 3000 per rape kit. Price, supra note 126. For further
discussion of the cost effectiveness of using DNA fingerprints to solve
crimes, see Tracy & Morgan, supra note 122, at 663-68. For further
discussion of statute of limitations issues and individual state responses
to the problem with regard to rapes, see infra Part III.

n156 Part II analyzes the constitutionality of using DNA warrants to find
suspects whose DNA profiles are not already in a DNA database or otherwise
readily available to police. The issue of using DNA warrants in combination
with databases does not necessitate further sampling of a suspect's DNA, it
raises different constitutional issues. However, the speedy trial and
staleness issues may still arise not only in the context of currently
acquiring DNA samples discussed in this Part but also in the context of a
preexisting DNA profile in a database. For further discussion of the
legality of using DNA databases to identify persons matching the profiles of
crime scene samples, see generally Donnelly & Friedman, supra note 117.

n157 U.S. CONST. amend. IV. The Fourth Amendment applies to the states
through the Fourteenth Amendment. See Wolf v. Colorado, 338 U.S. 25, 27-28
(1949).

n158 U.S. CONST. amend. IV (requiring that warrants "particularly describe
the place to be searched, and the persons or things to be seized").

n159 See People v. Nieves, 330 N.E.2d 26, 31 (N.Y. 1975) (holding that
warrant authorizing search of any person at specific location does not meet
particularity requirement and is too general when there is no probable cause
to seize any persons on premises).

n160 State v. Pecha, 407 N.W.2d 760, 764 (Neb. 1987) (holding invalid
warrant for "John and/or Jane Doe" when catch-all not based on probable
cause, but stating that there may be some circumstances under which valid
warrant may "be issued for one whom the police cannot identify by name in
advance").

n161 State v. Hinkel, 365 N.W.2d 774, 776 (Minn. 1985) (holding that warrant
to search everyone in house valid when police were dealing with illegal
activity throughout house and there was little likelihood that anyone in
house would not be participating in illegal activity).

n162 68 AM. JUR. 2D Searches and Seizures ¤ 219, at 794 (2000); see also
West v. Cabell, 153 U.S. 78 (1894) (stating that both common law and
Constitution require that arrest warrants "specifically name or describe the
person to be arrested" and that "a warrant that does not do so will not
justify the officer making the arrest").

n163 68 AM. JUR. 2D Searches and Seizures, ¤ 219, at 793-94. Even in
situations in which an indictment based on probable cause has been issued,
"a warrant requirement remains." FED. R. CRIM. P. 9(b)(1); United States v.
Jarvis, 560 F.2d 494, 497 (2d Cir. 1977) (invalidating John Doe warrant
because warrant did not describe defendant even though indictment had been
handed down).

n164 FED. R. CRIM. P. 4(c)(1).

n165 Jarvis, 560 F.2d at 497.

n166 The DNA profile in and of itself could conceivably be deemed a
description of a person.

n167 665 A.2d 142 (Conn. 1995).

n168 Id. at 146 (internal quotation marks omitted).

n169 88 A.2d 562 (Md. 1952).

n170 Id. at 563 (quoting warrant).

n171 See, e.g., People v. Simmons, 569 N.E.2d 591, 595 (Ill. 1991).

n172 Id.

n173 See id.

n174 It seems logical that conventional fingerprints would be included as a
type of identifying information in warrants. Although it would be
particularly helpful to this analysis to know whether courts have upheld
John Doe warrants based on conventional fingerprints, no cases were located
that involved such warrants. See Bernasconi, supra note 4, at 1007-16
(comparing DNA fingerprints and conventional fingerprints and noting that no
John Doe warrants have been issued based solely on conventional
fingerprints). A DNA sample seems largely analogous to a conventional
fingerprint in that both can be used as unique identifiers. However, a
fingerprint can be taken and compared to the one in a warrant without
invading a person's body, whereas obtaining a DNA sample for comparison
would require more invasive procedures.

n175 Even if police do include a physical description, it is unclear whether
the warrant will be upheld. See, e.g., Martini v. State, 92 A.2d 456, 457
(Md. 1952) (invalidating search of "white man . . . about 25 yrs. of age"
because description in warrant would cover too many people (internal
quotation marks omitted)); Gonzales v. State, 761 S.W.2d 809, 811 (Tex. App.
1988) (indicating description in the warrant of defendants as "latin males"
too general (internal quotation marks omitted)). However, if a physical
description, no matter how general, is included along with a DNA profile, it
seems that a court would be more likely to be find it sufficiently specific.
The implications for Fourth Amendment analysis are discussed infra
Subsection III.A.2.

n176 See U.S. CONST. amend. IV (guaranteeing "the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures").

n177 This argument assumes that obtaining a person's DNA impinges on his
privacy. Obtaining one's DNA most likely implicated the privacy interest
because one's DNA contains significant information about a person beyond
their identity; for example, it can reveal whether a person has a hereditary
disease.

n178 Mapp v. Ohio, 367 U.S. 643, 655 (1961).

n179 Katz v. United States, 389 U.S. 347, 361 (1967).

n180 Skinner v. Ry. Labor Executives' Ass'n 489 U.S. 607, 619 (1989).

n181 Illinois v. Gates, 462 U.S. 213, 245-46 (1983) (requiring probable
cause as justification for searches that aid in criminal investigation).

n182 Terry v. Ohio, 392 U.S. 1, 30-31 (1968) (allowing reasonable suspicion
that suspect may be armed and dangerous to justify brief stop and frisk for
weapons).

n183 Skinner, 489 U.S. at 619 (finding special needs cases--administrative
needs outweigh law enforcement needs--reasonable even in the absence of
particularized suspicion so long as search is minimally intrusive and
government interest is strong).

n184 Another possible type of encounter under the Fourth Amendment is a
"Terry stop," which may be conducted with the lesser showing of reasonable
suspicion. Terry, 392 U.S. at 30-31. Terry stops do not seem particularly
relevant to the use of DNA warrants, however, because it would be difficult
to reasonably suspect that someone's DNA matches that in the warrant. It
would not be feasible to collect and analyze a blood or other type of sample
during a brief stop.

n185 Richard Willing, Privacy Issue Is the Catch for Police DNA 'Dragnet,'
USA TODAY, Sept. 16, 1998, at A1. Out of 200 suspects in the murder of a
college student in Oklahoma, only four required a court order for a DNA
sample and the rest gave DNA samples voluntarily. Rodney Bowers, DNA Dragnet
in '96 Student Murder Comes Under Fire, ARK. DEMOCRAT-GAZETTE, June 18,
2001, at A2. Of the 200 men already tested, few had an existing criminal
record. Julie DelCour, Opinion, How Far is Too Far? DNA Dragnets Widen to
Catch Attackers, TULSA WORLD, June 3, 2001, available at 2001 WL 6930313.

n186 Dodson, supra note 17, at 230. A DNA sample could be obtained from a
blood sample or a cheek swab, for example. Id.

n187 See id. Such dragnets are commonly used in Europe. The first widely
publicized case involving a mass DNA screening occurred in England in 1987,
when 5000 people were tested in an effort to find those guilty of raping and
murdering two teenagers. Bowers, supra note 185. In January 2000, Britain
conducted a dragnet to test 12,000 men in order to apprehend the perpetrator
of the rape of two teenage sisters. Teenage Sisters Are Raped in a Park;
Suddenly Every Man Seems to Be a Suspect, SUNDAY EXPRESS (London), Jan. 30,
2000, available at LEXIS, News Library, Sunex File. More recently, police
took DNA samples on a voluntary basis from 2000 suspects in an effort to
apprehend the "Batman rapist," who has struck fourteen times since 1991.
Wendy Best, 2,000 in Batman Rape DNA Test; Police Plan Dragnet in the Hunt
for West Serial Attacker, W. DAILY PRESS (Bristol), Jan. 24, 2001, at 1.

n188 Dodson, supra note at 17, at 230. The main concern with DNA dragnets is
that they constitute "an Orwellian slippery slope" that results in
significant threat to privacy. Shawn Donnan, Willing to Give Up Their DNA,
but Privacy Too?, CHRISTIAN SCIENCE MONITOR, Apr. 13, 2000, at 1. Opponents
of dragnets also worry that innocent individuals may agree to give DNA
samples for fear that they would appear guilty if they refused to cooperate.
Bowers, supra note 185.

n189 384 U.S. 757 (1966).

n190 Id. at 768-70.

n191 Id. at 758-59.

n192 Id.

n193 Id. at 768-69 (reasoning that driver's bloodshot eyes, breath, and
other signs of intoxication, coupled with exigent circumstances of car
accident, constituted probable cause).

n194 Even if cheek swabs or hair samples are used as the source of DNA,
extensive analysis will be needed to provide a DNA fingerprint. Although
these types of samples are not covered by Schmerber, it could be argued that
it is not simply the obtaining of the sample but also its analysis that
necessitates a prior showing of probable cause.

n195 See, e.g., Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996)
(upholding Colorado statute requiring inmate convicted of sexual offense to
provide DNA sample prior to being released on parole); Rise v. Oregon, 59
F.3d 1556, 1564 (9th Cir. 1995) (upholding state law requiring persons
convicted of murder or sexual offense to submit blood sample for inclusion
in DNA database); Jones v. Murray, 962 F.2d 302, 303 (4th Cir. 1992)
(upholding Virginia statute requiring convicted felons to submit DNA samples
for creation of database).

n196 Dodson, supra note 17, at 244.

n197 193 F.3d 72 (2d Cir. 1999).

n198 Id. at 75-76.

n199 Id. at 76.

n200 Id. at 77.

n201 Id. at 80.

n202 Id. at 77.

n203 Id. at 82.

n204 See generally Dodson, supra note 17.

n205 See id. at 251-52.

n206 See id. at 252.

n207 See id. at 252-53.

n208 394 U.S. 721 (1969).

n209 Id. at 727.

n210 Id. at 727-28. In dicta, the case provided:

     Because of the unique nature of the fingerprinting process, such
     detentions might, under narrowly defined circumstances, be found
     to comply with the Fourth Amendment even though there is no
     probable cause in the traditional sense. Detention for
     fingerprinting may constitute a much less serious intrusion upon
     personal security than other types of police searches and
     detentions. Fingerprinting involves none of the probing into an
     individual's private life and thoughts that marks an interrogation
     or search. Nor can fingerprint detention be employed repeatedly to
     harass any individual, since the police need only one set of each
     person's prints. Furthermore, fingerprinting is an inherently more
     reliable and effective crime-solving tool than eyewitness
     identifications or confessions and is not subject to such abuses
     as the improper line-up and the "third degree." Finally, because
     there is no danger of destruction of fingerprints, the limited
     detention need not come unexpectedly or at an inconvenient time.
     For this same reason, the general requirement that the
     authorization of a judicial officer be obtained in advance of
     detention would seem not to admit of any exception in the
     fingerprinting context.

Id. (citations omitted).

n211 See, e.g., Hayes v. Florida, 470 U.S. 811, 817 (1985) (refusing to
abandon suggestion that "under circumscribed procedures, the Fourth
Amendment might permit the judiciary to authorize the seizure of a person on
less than probable cause and his removal to the police station for the
purpose of fingerprinting").

n212 See, e.g., Long v. Garrett, 527 P.2d 1240, 1242 (Ariz. Ct. App. 1974)
(upholding statute authorizing temporary detention based on reasonable
suspicion for purpose of obtaining evidence of physical characteristics);
State v. Hall, 461 A.2d 1155, 1160-62 (N.J. 1983) (allowing investigative
detention on less than probable cause in order to obtain limited
nontestimonial identification); In re Order Requiring Fingerprinting of a
Juvenile, 537 N.E.2d 1286, 1288-89 (Ohio 1989) (holding juvenile court judge
properly ordered fingerprinting where there was specific basis for
suspecting juvenile of involvement in criminal activity, there was strong
law enforcement interest, and intrusion was limited in scope, purpose, and
duration).

n213 In re Fingerprinting of M.B., 309 A.2d 3, 4-5 (N.J. Super. Ct. App.
Div. 1973).

n214 Id. at 4.

n215 Id. at 7.

n216 Id.

n217 Such reasoning is used to justify dragnets, but the difference is that
such investigations have hitherto relied on consensual provision of DNA
samples. See supra notes 185-188 and accompanying text for examples of
dragnets in the U.S. and Europe; for more information about dragnets, see
infra Part IV.

n218 59 F.3d 1556 (9th Cir. 1995).

n219 Id. at 1559 (stating the "information derived from the blood sample is
substantially the same as that derived from fingerprinting--an identifying
marker unique to the individual from whom the information is derived"). In
addition, some states have allowed seizure of blood without probable cause
for identification purposes. For example, in People v. Harris, 762 P.2d 651
(Colo. 1988), the Colorado Supreme Court upheld a seizure of blood used to
identify a suspect in a sexual assault despite the absence of probable
cause. Id. at 652. The Harris court relied on Rule 41.1 of the Colorado
Rules of Criminal Procedure in upholding the order authorizing
nontestimonial identification, but only after ensuring that there was
probable cause to believe the offense had been committed along with
reasonable grounds to suspect the defendant, as well as compliance with
other conditions. Id. at 655-56. Given the specific conditions that allowed
the court to reach its holding, it is unlikely that absent similar
circumstances DNA identification would be readily accepted.

n220 Balancing DNA Use, ST. PETERSBURG TIMES, Mar. 29, 2000, at 14A.

n221 See Section I.B (describing the process of analyzing DNA).

n222 Imwinkelreid & Kaye, supra note 103, at 423. The fact that information
beyond identification can be derived from a DNA fingerprint may be relevant
to the court given that in Skinner v. Railway Labor Executives' Ass'n, 489
U.S. 602 (1989), the Court observed "that chemical analysis of urine, like
that of blood, can reveal a host of private medical facts about an employee,
including whether he or she is epileptic, pregnant, or diabetic." Id. at
617. However, Skinner involved testing without individualized suspicion, and
thus, the case does not necessarily imply that probable cause is needed for
a search that provides more than identifying information. See Imwinkelreid &
Kaye, supra note 103, at 422 n.42.

n223 Rise, 59 F.3d at 1564 (Nelson, J., dissenting).

n224 This requirement would only apply in situations in which individuals
are compelled to provide DNA samples, such as nontestimonial identification
as in Harris or in a nonconsensual dragnet. In situations in which an
individual's DNA fingerprint is already on file in a database, this analysis
is irrelevant.

n225 Justin Amaechi Okezie, The Presumption of Guilt and Compulsory HIV
Testing of Accused Sex Offenders, 6 AM. U. J. GENDER & LAW 557, 558 (1998).

n226 See Karen L. Folster, High Court Studies: The New Jersey Supreme Court
in the 1990s: Independence Is Only Skin Deep, 62 ALB. L. REV. 1501, 1537
(1999).

n227 See State ex rel. J.G., 701 A.2d 1260, 1263 (N.J. 1997).

n228 Id. at 1262.

n229 Id. at 1265-74.

n230 See, e.g., Camara v. Mun. Court, 387 U.S. 523, 526-27 (1967).

n231 See id. at 539-40. In Camara, the Court explained that, in the case of
most routine housing inspections.

     there is no compelling urgency to inspect at a particular time or
     on a particular day. Moreover, most citizens allow inspections of
     their property without a warrant. Thus, as a practical matter and
     in light of the Fourth Amendment's requirement that a warrant
     specify the property to be searched, it seems likely that warrants
     should normally be sought only after entry is refused unless there
     has been a citizen complaint or there is other satisfactory reason
     for securing immediate entry. Similarly, the requirement of a
     warrant procedure does not suggest any change in what seems to be
     the prevailing local policy, in most situations, of authorizing
     entry, but not entry by force, to inspect.

Id.

n232 See Okezie, supra note 225, at 567.

n233 See id.

n234 489 U.S. 602 (1989).

n235 Id. at 619 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979))
(holding Federal Railroad Administration regulations requiring blood and
urine tests of employees involved in certain train accidents reasonable
despite absence of requirement of individualized suspicion for test
administration).

n236 Id. at 619, 624, 631.

n237 State ex rel. J.G., 701 A.2d 1260, 1265 (N.J. 1997).

n238 See id. at 1267.

n239 See id. at 1268.

n240 Id. at 1272, 1274-75 (holding "a showing that there has been a possible
transfer of bodily fluids from the accused or convicted offender to the
victim, and thus a demonstration of a risk that the AIDS virus may have been
transmitted from the offender to the victim" necessary to obtain court order
for HIV testing).

n241 U.S. CONST. amend. V (providing that "no person . . . shall be
compelled in any criminal case to be a witness against himself").

n242 Schmerber v. California, 384 U.S. 757, 761 (1966) (holding compelled
production of physical evidence did not constitute "evidence of a
testimonial or communicative nature" and thus was not prohibited by the
Fifth Amendment); Holt v. United States, 218 U.S. 245, 253 (1910)
(dismissing defendant's challenge to admission of evidence that a certain
jacket fit defendant when defendant had been compelled to put on jacket
because Fifth Amendment did not exclude "his body as evidence" and noting
that "whether voluntarily or by order . . . the [body] evidence, if
material, is competent"); see also Fred W. Drobner, DNA Dragnets:
Constitutional Aspects of Mass DNA Identification Testing, 28 CAP. U. L.
REV. 479, 507-10 (2000). The Holt analysis has been used to uphold the
compelled production of handwriting samples, voice exemplars, fingerprints,
X-rays, and physical characteristics. See United States v. Mara, 410 U.S.
19, 22 (1973) (handwriting sample); United States v. Dionisio, 410 U.S. 1,
5-6, 14 (1973) (voice exemplar); In re Maguire, 571 F.2d 675, 676 (1st Cir.
1978) (fingerprints); Aaron v. State, 139 So. 2d 309, 315 (Ala. 1961)
(physical characteristics); State v. Emerson, 123 N.W.2d 382, 385-86 (Minn.
1963) (X-rays).

n243 Drobner, supra note 242, at 507.

n244 342 U.S. 165 (1952).

n245 Id. at 166.

n246 Id.

n247 Id. at 172-74. In Breihaupt v. Abram, 352 U.S. 432 (1957), the Court
declined to follow Rochin. Id. at 435-37 (upholding police action taking
blood sample from unconscious defendant in order to determine his blood
alcohol level and distinguishing Rochin based on the fact that such an
intrusion was minimal and "routine" and did not involve brutality).

n248 Drobner, supra note 242, at 509. In the case of dragnets, which are
discussed infra Part V, a person refusing to submit to testing could well be
considered to implicate himself in a crime. In the event of a dragnet,

     the subject's refusal to submit to the test, while not directly
     conferring any information regarding his culpability for the crime
     being investigated, could very well be considered testimonial
     evidence . . . because he is being requested . . . to assent to a
     procedure whose refusal could be considered an implied assertion
     of the fact of his culpability.

Id. at 510. There are thus situations in which DNA fingerprinting could be
restricted by the Fifth Amendment protection against compelled
self-incrimination. See id. at 509-10.

n249 Procedural issues related to statutes of limitation are discussed infra
Part IV.

n250 For a good discussion of the speedy trial issues associated with DNA
warrants, see Bernasconi, supra note 4, at 1016-35 (emphasizing the
potential prejudice to defendants prosecuted as a result of DNA warrants).

n251 See Kristen M. Shults, Project, Twenty-Ninth Annual Review of Criminal
Procedure: Speedy Trial, 88 GEO. L.J. 1208, 1208 (2000). Problems with
delaying trial include the fact that witnesses' memories may fade, evidence
may deteriorate, and the victim will suffer the strain of uncertainty and
lack of closure.

n252 U.S. CONST. amend. VI. The Sixth Amendment speedy trial guarantee is
binding on the states through the Due Process Clause of the Fourteenth
Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967).

n253 18 U.S.C. ¤¤ 3161-3174 (2000) (specifying time limits between, for
example, indictment and trial).

n254 See id. ¤ 3161(a)-(g).

n255 Shults, supra note 251, at 1209.

n256 Id. at 1208; Hoffman, supra note 2. Prosecutors in Wisconsin and at
least two other states have sought to circumvent the statute of limitations
on rape cases by filing formal charges against unnamed defendants based
solely on DNA profiles. Id. The constitutionality of these nameless
indictments has not yet been tested.

n257 Shults, supra note 251, at 1209 n.1169 (quoting United States v.
Marion, 404 U.S. 307, 324 (1971)) (indicating that prosecutorial delay
problematic and in violation of due process when intentionally done to gain
a tactical advantage, done solely to disadvantage defense, or to maximize
length of sentence).

n258 Id. at 1211 n.1175. See United States v. MacDonald, 456 U.S. 1, 8
(1982); United States v. Marion, 404 U.S. at 320 (indicating postaccusation
delay may impair effectiveness of defense, and discussing speedy trial
guarantee against undue impairment of liberty). For a discussion of the
purposes of the speedy trial guarantee, see Klopfer v. North Carolina, 386
U.S. 213, 223-26 (1967).

n259 See Shults, supra note 251, at 1211 n.1176 ("The Sixth Amendment right
does not attach when the suspect is arrested and released, but the
government fails to bring or subsequently drops charges, as long as bail is
not required and no other restraints on liberty are imposed.").

n260 18 U.S.C. ¤ 3161(b) (2000).

n261 Id. ¤ 3161(c)(1).

n262 But see Bernasconi, supra note 4, at 1016-35 (suggesting that
defendants will have to resort to speedy trial arguments to compensate for
states' inconsistent policies underlying statutes of limitations).

n263 See United States v. Bedford, 519 F.2d 650, 655 (3d Cir. 1975) (finding
execution of a nine-day-old warrant proper because it was executed as soon
as reasonably possible).

n264 See State v. Evans, 815 S.W.2d 503, 504 (Tenn. 1991) (applying Fourth
Amendment and creating a rebuttable presumption that a warrant executed
within five days of issuance retains probable cause).

n265 Bedford, 519 F.2d at 655 (quoting United States v. Nepstead, 424 F.2d
269, 271 (9th Cir. 1970)).

n266 State v. Edwards, 297 N.W.2d 12, 16 (Wis. 1980) (applying Fourth
Amendment and holding warrant timely executed).

n267 State v. Baker, 956 S.W.2d 8, 13 (Tenn. Crim. App. 1997).

n268 See, e.g., Commonwealth v. Alvarez, 661 N.E.2d 1293, 1299 (Mass. 1996).

n269 Although DNA warrants could be issued for any crime in which a DNA
sample is available, this Note is limited to discussion of their use in
instances involving rape.

n270 21 AM. JUR. 2D Criminal Law ¤ 291 (1998).

n271 See id.; see also State v. Rolen, 662 So. 2d 446, 449 (La. 1995)
(distinguishing statutes of limitation and cleansing periods); Bernasconi,
supra note 4, at 1002-03 (suggesting that extending or abolishing statutes
of limitation for certain DNA-implicated crimes would act as a check on
Sixth Amendment guarantees).

n272 Doege, supra note 153. This raises a due process issue because it may
be unfair for a suspect to be informed of his prosecution through the
identification of his DNA. This issue requires a complete analysis that is
beyond the scope of this Note.

n273 Battle Under Way on John Doe Warrant, UPI, July 9, 2001, LEXIS, Nexis
Library, UPI File (internal quotation marks omitted).

n274 Id.

n275 Doege, supra note 153.

n276 See 21 AM. JUR. 2D Criminal Law, supra note 270, ¤ 297.

n277 Id. at ¤ 311. Once the likely perpetrator has been identified through
database searches, then the warrant or indictment can be amended to include
the name or further identifying characteristics of the suspect, provided the
statute allows amendments that simply correct a defect rather than adding a
new charge. See id. at ¤ 312.

n278 WIS. STAT. ANN. ¤ 939.74(1) (West 2001).

n279 Id. ¤ 939.74(3).

n280 A state-by-state analysis of statutes of limitations on rape is outside
the scope of this Note, but some states, such as California, have already
eliminated them in certain cases. Associated Press, California High Court,
supra note 2 (stating that "the California Legislature has already adopted a
law that extends the statute of limitations indefinitely in rape cases where
a DNA profile of the attacker exists").

n281 Goodyear & Hallissy, supra note 140 at A1. Goodyear and Hallissy
provide an example of the DNA database being used to solve a case:

     In 1984, 13-year-old Heidi Marie Fredette's body was found dumped
     by the side of Highway 36 in Tehama County. She had been
     strangled, stabbed and sexually assaulted.

     Fifteen years later, evidence taken at the time of her death was
     analyzed as part of the . . . Department of Justice's "old and
     cold" program. A DNA fingerprint of the rapist was completed and
     compared against the DNA databank of known felons in Berkeley.

     A cold hit was made to David James McIntosh, 53, whose genetic
     profile was in the databank because of a conviction for
     kidnapping, rape and assault with intent to commit rape. McIntosh
     was just days away from being released from Folsom State Prison,
     but he is now being prosecuted for murder, kidnapping and murder
     by torture of Heidi, and will be eligible for the death penalty.

Id.

In Ohio, the first cold hit using the state database was made in March 2001.
State DNA Database Leads to Rape Charge; Prisoner Indicted in '99 Attack,
CINCINNATI ENQUIRER, Mar. 15, 2001, at B1. Although the state database
previously had been used to link cases, DNA evidence had not previously been
used to identify a suspect. Id. In the Ohio case, Sean B. Price, a convicted
burglar, was indicted on charges of aggravated burglary, attempted murder,
and rape. Mr. Price was out on parole after serving under five years of a
five to twenty-five year sentence for burglary when he committed the rape.
Id.

n282 In addition, databases have been used to link DNA samples from one
crime scene to another in over 460 cases with unidentified suspects. Manuel
Roig-Franzia, Database of DNA Used in Arrest; Chicago Man Is Accused of Rape
in Anne Arundel, WASH. POST, Nov. 16, 2000, at B1. In Virginia alone, there
have been over 400 cold hits, and in Florida there have been 325. Goodyear &
Hallissy, supra note 140.

n283 California has indefinitely extended its statute of limitations in rape
cases, while New York and Wisconsin are considering abolishing the statutes
of limitations. See supra note 12.

n284 The elimination of the statute of limitations on rape could be
accomplished in several ways. For example, it could be completely eliminated
for all rape cases. The solution also could be more narrow, that is, the
statute of limitations could be extended indefinitely if there is DNA
evidence identifying the perpetrator available or if the victim brings
charges within a given time period. For a thorough discussion of the policy
considerations surrounding the statute of limitations on rape and a proposal
to create limited exceptions to the statute of limitations, see Dunn, supra
note 1, at 860-68.

n285 Deck, supra note 85, at 1058. For examples of dragnets in the United
States and Europe, see supra notes 185-86 and accompanying text.

n286 Rick Atkinson, DNA Samples Catch American Killer of Toddler in Germany,
WASH. POST, Jan. 1, 1995, at A27.

n287 Id.

n288 42 U.S.C. ¤¤ 3751, 3753, 3793, 3796kk, 3796kk-1-6, 3797, 14131-14134
(1994), amended by DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C.A.
¤¤ 14132-14135e (West Supp. 2001).

n289 Deck, supra note 85, at 1066. Data compiled for DNA "identification
research" can be included in CODIS, and such data can later be used to
identify "otherwise unidentifiable DNA profiles also in the index," thus
opening the way for the inclusion of the DNA of nonfelons in the database.
Deck, supra note 85, at 1066.

n290 For a general discussion of the concerns surrounding the creation of a
national database, and specifically consent issues, see Teresa K. Baumann,
Note, Proxy Consent and a National DNA Databank: An Unethical and
Discriminatory Combination, 86 IOWA L. REV. 667 (2001).

n291 See Schmerber v. California, 384 U.S. 757, 768 (1966); Part II.A.

n292 Drobner, supra note 242, at 503.

n293 Deck, supra note 85, at 1073.

n294 See, e.g., Bell v. Wolfish, 441 U.S. 520, 545 (1979) (indicating that
prisoners' rights are subject to restrictions and limitations); Jones v.
Murray, 962 F.2d 302, 306 (4th Cir. 1992) (explaining that persons lawfully
arrested on probable cause and detained by the state do not have same
privacy protections as free persons).

n295 See United States v. McCarthy, 38 M.J. 398, 402 (C.M.A. 1993)
(indicating a full expectation of privacy would be unreasonable given the
unique nature and needs of military life).

N296 Deck, supra note 85, at 1067-74.

n297 See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619, 624
(1989) (finding searches in special needs cases reasonable even in the
absence of particularized suspicion so long as search is minimally intrusive
and government interest is strong); Deck, supra note 85, at 1073. Under the
special needs analysis, the court weighs the competing public and private
interests. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66
(1989). There are important governmental interests in crime prevention and
detection and a lack of alternatives for unique identification of forensic
samples. Skinner, 489 U.S. at 624 (indicating that in situations "where the
privacy interests implicated by the search are minimal, and where an
important governmental interest furthered by the intrusion would be placed
in jeopardy by a requirement of individualized suspicion, a search may be
reasonable despite the absence of such suspicion"); Terry v. Ohio, 392 U.S.
1, 22 (1968) (acknowledging the interest in "effective crime prevention and
detection . . . which underlies the recognition that a police officer may in
appropriate circumstances and in an appropriate manner approach a person for
purposes of investigating possibly criminal behavior even though there is no
probable cause to make an arrest"); Deck, supra note 85, at 1061-64
(discussing DNA as a unique identification method). The individual privacy
interests in one's DNA would be balanced against this government interest.
Under Schmerber, a blood test is minimally intrusive with respect to that
individual's privacy interest. Schmerber v. California, 384 U.S. 757, 771
(1966). If DNA samples were obtained at birth from blood drawn for other
reasons, the procedure would be less invasive than if blood were drawn
solely for profiling purposes. Deck, supra note 85, at 1074.

n298 Deck, supra note 85, at 1074.

n299 There are reasons other than law enforcement that would favor the
creation of a national DNA database. For example, the events of September
11, 2001 present a good reason to create such a database. DNA was used to
aid in the identification of the victims of the World Trade Center attacks.
Sally Jenkins, The Quest for 6,347 Identities; In New York, Massive Project
Tests DNA Technology's Limits, WASH. POST, Sept. 27, 2001, at A1. Such a
massive identification effort would undoubtedly be greatly facilitated by
the existence of a database containing the DNA profiles of all citizens.

n300 The admissibility of DNA evidence is discussed supra Section II.C.

n301 See Deck, supra note 85, at 1090.

n302 See id. at 1078-79.

n303 A DNA profile including regions of the genome that encode for proteins,
for example, could reveal information about an individual's paternity,
current health status, and potential health risks. Juengst, supra note 145,
at 64. In addition, information contained in a DNA fingerprint may expose a
person to discrimination on the basis of his genotype. Id.; see also Philip
L. Bereano, DNA Identification Systems: Social Policy and Civil Liberties
Concerns, 1 INT'L J. BIOETHICS 146, 151 (1990) (discussing discrimination
based on genetic screening); Barry Scheck, DNA Data Banking: A Cautionary
Tale, 54 AM. J. HUM. GENETICS 931, 932-33 (1994) (discussing the potential
for use of DNA databases for research studies on the genetic makeup of
certain types of criminals).

n304 See Dan L. Burk & Jennifer A. Hess, Genetic Privacy: Constitutional
Considerations in Forensic DNA Testing, 5 GEO. MASON U. CIV. RTS. L.J. 1,
8-15 (1994). For example, insurance companies may be interested in
information about hereditary diseases.

n305 See id. at 13. Although the government arguably has no interest in
genetic information besides that needed for identification, in the past
there have been incidents, such as those involving research into the
incidence of XYY syndrome among felons, that suggest that samples stored by
law enforcement can be used for illegitimate research. See id. at 13-14. XYY
syndrome is more prevalent among prisoners than among the general
population, and some researchers have suggested this genetic aberration may
predispose individuals to aggression. 1 KEETON & GOULD, supra note 18, at
440.

n306 See Burk & Hess, supra note 304, at 51-52 (expressing concern about
"the lack of extant constitutional safeguards for genetic privacy" and
suggesting a statutory ban on use of databases for nonidentification
purposes, among other reforms).

n307 See Hibbert, supra note 123, at 821.

n308 Some examples of protective measures would be to avoid analyzing
biologically informative DNA regions and to destroy DNA samples upon
analysis. See Juengst, supra note 145, at 81.