[Back to Document View]

                            LexisNexisª Academic

                   Copyright (c) 2001 Brooklyn Law School
                            Brooklyn Law Review

                                 Fall, 2001

                          67 Brooklyn L. Rev. 127

LENGTH: 18861 words

ARTICLE: LEGAL AND POLICY ISSUES IN EXPANDING THE SCOPE OF LAW ENFORCEMENT
DNA DATA BANKS *

* (c) 2001 Mark A. Rothstein & Sandra Carnahan. All Rights Reserved.

Mark A. Rothstein+ & Sandra Carnahan++

+ Herbert F. Boehl Chair of Law and Medicine and Director, Institute for
Bioethics, Health Policy and Law, University of Louisville School of
Medicine and Louis D. Brandeis School of Law. Research on this article was
supported in part by the Commonwealth of Kentucky Research Challenge Trust
Fund. Christy Weis, J.D. 2001, Louis D. Brandeis School of Law, University
of Louisville, provided valuable research assistance. Howard Stone provided
several insightful comments on an earlier draft. The authors are especially
indebted to David Kaye for graciously providing a number of suggestions on
our manuscript as well as an advance copy of his response.

++ Assistant Professor of Law, South Texas College of Law.

SUMMARY:
... The original state laws were not identical in scope, but generally
mandated that individuals convicted of sex offenses and a few other violent
felonies, such as murder, were required to submit samples to the state for
DNA analysis and storage in the state law enforcement data bank. ... (2) The
Government Interest: The Data Bank Cases, City of Indianapolis v. Edmond,
and Ferguson v. City of Charleston The convicted offender data bank cases
have uniformly declared significant government interests in identifying and
prosecuting criminals and deterring recidivist acts, deterring and
prosecuting unsolved and future criminal acts, preserving a permanent
identification record for identifying felons who may have otherwise altered
their identify, and improving law enforcement. Those courts attempting to
characterize the government interest as a "special need" beyond normal law
enforcement have had a particularly difficult time in reconciling the
concept of identification and prosecution of criminals as something other
than "law enforcement." For example, in State v. Olivas, which upheld the
Washington DNA testing statute, the court stated that the purpose of the DNA
data bank was to deter and prosecute recidivist acts, and that this purpose
was a "special need" of government beyond "normal" law enforcement. ... The
Edmond case, therefore, calls into question the reasoning of the courts in
essentially all of the DNA data bank cases with respect to their
characterization of the "government interest" side of the balancing test,
which is "virtually indistinguishable from the general interest in crime
control." ...

TEXT:
 [*127]

Introduction

Modern DNA identification techniques were developed in the United Kingdom in
the mid-1980s, n1 and were originally used in criminal investigations. It
was not long before U.S. courts in criminal cases permitted expert testimony
about the probability of a match between a defendant's DNA and DNA obtained
from blood, semen, and other biological materials left at a crime scene. n2
Within a mere decade of its first appearance in court, virtually every
jurisdiction in the United States had held that DNA identification evidence
was admissible. n3

When DNA evidence proved valuable in determining a match between DNA
specimens left at a crime scene and DNA from suspects in custody, the next
logical use of DNA identification was to link crime scene evidence with the
DNA of individuals who were not yet suspected in the crimes. Indeed, DNA
identification technology was initially used to find a serial rapist from
among the population of three Leicestershire  [*128]  villages in England.
n4 In the United States, to facilitate suspicionless identification, or what
has become known as "cold hits," it was necessary to develop a repository of
DNA samples from known individuals with which crime scene evidence could be
compared. n5

After Congress appropriated funds to develop both a federal system run by
the FBI and state systems, n6 every state enacted the necessary enabling
legislation to develop a linked system of DNA data banks. n7 The original
state laws were not identical in scope, but generally mandated that
individuals convicted of sex offenses and a few other violent felonies, such
as murder, were required to submit samples to the state for DNA analysis and
storage in the state law enforcement data bank. n8 Individuals convicted of
sex offenses and other violent felonies were required to have their DNA
analyzed because these crimes are often committed by recidivists, and the
perpetrators are especially likely to leave DNA evidence at the crime scene.

The DNA data banks proved to be such a powerful law enforcement tool that
within a few years many states amended their laws to expand the categories
of crimes from which DNA samples were required. n9 In many cases, the crimes
bore little relationship to the initial justifications. n10 Instead, it was
asserted that perpetrators of less violent personal and property crimes, if
not apprehended, would be likely to commit other, more violent crimes. Legal
challenges to the state laws, even those with broader scope, were uniformly
unsuccessful, n11 thus  [*129]  encouraging the notion that more
comprehensive data banks are legally and socially acceptable.

It is understandable that some well-meaning public officials and legal
scholars have advocated obtaining DNA samples from all individuals arrested
for certain crimes or for any crime. n12 Inevitably, there will be calls for
a universal DNA law enforcement data bank with samples from every resident
of the country. n13 Technically, this would be a massive but possible
undertaking, and it might involve, for example, the use of newborn screening
samples, and samples taken upon entry in school, application for a driver's
license, or government benefits such as Social Security. In other countries,
including the United Kingdom, Australia, Canada, and Germany, mass genetic
sweeps (such as testing all adult males in a certain geographical area) have
been used to solve crimes, although general data bases have not been
established. n14 DNA data banks of increasingly broad scope would help to
solve more crimes, n15 but at what cost to civil liberties?

Part I of this Article reviews the federal and state legal authority to
establish DNA data banks for law enforcement. It then considers the
constitutional arguments, primarily unreasonable search and seizure in
violation of the Fourth Amendment, that have been raised in challenging
existing laws. Because the Supreme Court has not yet decided any cases
dealing with this precise issue, and because prior cases  [*130]  would
support rguments upholding as well as striking down broader data banks, the
outcome of a court challenge to a broader data bank law must be viewed as
unclear at this time.

It is possible that a law establishing a broad DNA law enforcement data bank
might be held constitutional even though it went beyond what is necessary or
desirable. Therefore, Part II considers the policy issues at stake in DNA
data banks. Besides the issue of from whom samples should be required, in
this section we consider other significant issues, such as whether the
samples should be destroyed after analysis or retained indefinitely, for
what lawful purposes should the data be used, and whether current laws
contain adequate sanctions for the improper use of the data.

The Article concludes that regardless of the constitutionality of broader
data banks, public policy demands that only the DNA of convicted sex
offenders and violent felons should be collected. The analytical methods
should utilize technology that will disclose information useful only in
identification and not in assessing current or predictive health status.
Furthermore, once analyzed, the samples should be destroyed, thereby
assuring the public that the samples cannot be reanalyzed for any other
purpose.

I. Legal Issues

A. The Legal Authority to Test

The federal Violent Crime Control and Law Enforcement Act of 1994 n16
authorized the FBI to create a national data base of DNA samples taken from
convicted offenders, crime scenes and victims of crimes, and unidentified
human remains. As a result, the FBI established the Combined DNA Index
System ("CODIS"), which had been in development as a pilot program since the
early 1990s. n17 The 1994 law also  [*131]  provided the funds for states to
develop their DNA forensic capabilities, and the CODIS system allows state
and local forensics laboratories to exchange and compare DNA profiles
electronically, thereby creating a national DNA forensic system. n18

The CODIS system is organized into four data bases: (1) convicted offenders,
whose samples are taken upon conviction, incarceration, or release; (2)
unsolved cases, which contains biological crime scene evidence; (3) missing
persons data base, which contains both unidentified remains and profiles of
parents of missing children; and (4) populations data base, which compiles
the frequency of certain genetic markers among various populations. n19
Entry into the system is restricted to specified crime laboratories, and
security is further protected with the use of password access and
encryption. n20

All fifty states have enacted laws requiring convicted offenders to provide
DNA samples for analysis and entry into the CODIS system. n21 Subsequent
federal legislation also permitted the FBI to take DNA samples from
individuals convicted of federal crimes of violence, robbery, and burglary,
or similar crimes in the District of Columbia, or while in the military, and
authorizing the information derived from the samples to be included in the
CODIS system. n22

Despite being less than a decade old, many of the state laws authorizing the
collection of DNA samples have been amended to expand the list of
individuals from whom samples are required. As detailed in the Appendix,
Table 1, as of January 2001, the categories of offenses and the number of
states requiring samples from the individuals committing them is as follows:
sex offenses (51); offenses against children (50); murder (42); assault and
battery (35); juvenile delinquency (24); robbery (24); burglary (24); all
felonies or violent felonies (12). Three states have enacted laws providing
for the collection of DNA samples from individuals merely arrested for
certain crimes, although South Dakota's law was later  [*132]  amended to
apply only to individuals who have been convicted. n23 Louisiana's law
authorizes the DNA testing and data banking of individuals arrested for
felony sex offenses and other specified crimes. n24 California's law
authorizes the DNA testing of "a suspect" for murder, voluntary
manslaughter, felony spousal abuse, sexual assault of a child, kidnapping,
mayhem, and torture. n25 The clear trend is to expand the categories of
individuals from whom DNA samples are required. n26

B. Legal Challenges

State and federal DNA data banks have been challenged under a variety of
circumstances and legal theories. The context for the challenges include the
denial of good conduct time to prisoners who refuse to submit a DNA sample,
n27 the use of force to obtain a DNA sample over the objection of a
prisoner, n28 conditioning parole on submitting a DNA sample, n29 and using
a sample as evidence in a subsequent criminal case. n30 The context for the
challenge has not had any effect on the constitutional analysis used by the
courts. Therefore, the merits of the various arguments will be discussed
without a detailed discussion of the factual claims underlying the
challenges.  [*133]

The DNA data bank statutes have been challenged on several federal and state
constitutional grounds. State constitutional arguments have generally
tracked the federal arguments and neither have met with any success. The
most important argument is that DNA data bank laws are unconstitutional
because they amount to an unreasonable search and seizure in violation of
the Fourth Amendment.

1. Unreasonable Search and Seizure

The most frequently raised argument, and the most substantial one, is that
obtaining a DNA sample and using the genetic information derived from the
sample constitutes an unreasonable search and seizure. The Fourth Amendment
of the United States Constitution prohibits unreasonable searches and
seizures n31 and applies to the states via the Fourteenth Amendment. n32
Although nonconsensual searches conducted outside the judicial process are
per se unreasonable, n33 nothing in the Fourth Amendment expressly prohibits
government searches without a warrant. The Fourth Amendment prohibits only
searches that are unreasonable. n34 The Supreme Court has interpreted the
Fourth Amendment as establishing rules and presumptions that limit the
government's ability to intrude upon matters of personal privacy. n35 The
scope of its protections are broad, encompassing searches by police, school
officials, government employers, and others. The Supreme Court has applied
the Fourth Amendment in circumstances ranging from border searches and DWI
and narcotics checkpoints, to police surveillance  [*134]  techniques and,
most recently, to a hospital's sharing with law enforcement the drug screens
of its maternity patients. n36

CODIS implicates the Fourth Amendment because the bodily intrusion required
to obtain DNA from a convicted offender constitutes a search under the
Fourth Amendment. This section first examines how courts have viewed
physically intrusive searches within the traditional Fourth Amendment
context, which requires some level of individualized suspicion of
wrongdoing. Next, this section examines circumstances under which courts
have allowed physically intrusive searches absent individualized suspicion
after balancing the degree of intrusion upon personal privacy against the
government interest at stake, and includes a discussion of the balancing
test as applied in the DNA data bank cases. A few courts have compared DNA
sampling to the fingerprinting process, which may not trigger Fourth
Amendment analysis at all. That viewpoint is presented here as well, as are
other constitutional claims that have been raised in the DNA data bank
cases.

a. Bodily Intrusion in the Fourth Amendment Context

Where the Supreme Court has condoned government infringement upon bodily
integrity, it has done so either because police possessed some degree of
individualized suspicion of wrongdoing or because the search was justifiable
as an exception to the Fourth Amendment's warrant requirement. Early cases
held that the Fourth Amendment was implicated only upon a physical trespass
of tangible property, under the theory that superior property interests
controlled the right of the individual to prevent government searches. n37
Later cases extended Fourth Amendment protection to items seized without
technical trespass. n38 Then, in the landmark case of Katz v. United States,
n39 the Court explained that although what a person chooses to expose to the
public  [*135]  has no Fourth Amendment protection, those things that a
person seeks to preserve as private are constitutionally protected. n40 The
Katz standard requires that a person have a subjective expectation of
privacy and that this expectation be one that society would recognize as
reasonable. n41 Under this standard, the government may compel handwriting
or voice exemplars without implicating the Fourth Amendment because one has
no reasonable expectation of privacy in one's handwriting or voice, since
both are constantly exposed to the public. n42

When a government intrusion goes beyond the physical characteristics exposed
to the public, it constitutes a search subject to constitutional scrutiny.
Even when the intrusion is minimal, some level of individualized suspicion
is required. For example, the Supreme Court, in Davis v. Mississippi, n43
noted that the fingerprinting process "involves none of the probing into an
individual's private life and thoughts that marks an interrogation or
search." n44 Nonetheless, the Court held that the police violated the Fourth
Amendment when they illegally detained a person without probable cause in
order to take his fingerprints. n45 The Court noted in dictum, however, that
in "narrowly defined circumstances" it may be reasonable to compel
fingerprints on something less than probable cause. n46  [*136]

Under traditional Fourth Amendment analysis, when the government wishes to
intrude below the surface of the skin, or into an area where the expectation
of privacy is great, at a minimum, probable cause is required. The Supreme
Court has held that where police had probable cause to believe a suspect
committed a murder, it was constitutionally reasonable to take fingernail
scrapings from the suspect as evidence of the murder. n47 The Court noted,
however, that unlike the fingerprinting in Davis, searching under one's
fingernails goes beyond physical characteristics that are exposed to the
public, and constitutes the "severe, though brief intrusion upon cherished
personal security that is subject to constitutional scrutiny." n48

Courts typically interpret the Fourth Amendment to require a warrant where
bodily intrusion is involved. One court held a warrant was required to swab
the inside of a suspect's mouth to obtain a saliva sample. n49 The court
reasoned that one's saliva contains a significant amount of private genetic
identity information, and saliva is not an item generally exposed to the
public, even though the act of expectorating is somewhat commonplace. n50
Swabbing the inside of a person's mouth with a pad to obtain the saliva, the
court noted, implicates one's dignity interest; thus, a warrant was required
to obtain the sample. n51 On the other hand, one state supreme court
reasoned that by talking and yawning, the inside of the mouth was exposed to
public view, and that swabbing the inside of the mouth was less intrusive
than piercing the skin to draw blood. n52 Still, this court required the
lesser standard of reasonable suspicion to support an order compelling a
suspect to submit to the collection of cheek epithelial cells by swabbing
the inside of his mouth. n53  [*137]

Certainly, privacy interests are implicated when skin is pierced for the
compulsory administration of a blood test, and a warrant is required in the
absence of exigent circumstances. n54 When bodily fluids undergo chemical
analysis to obtain physiological data, a further intrusion upon privacy
interests occurs. n55 Bodily integrity concerns also arise when one is
compelled to expel "alveolar or 'deep lung' breath for chemical analysis."
n56

Courts consider intrusions that implicate privacy and dignity interests to
be searches implicating Fourth Amendment protections, even when the skin is
not pierced. For example, courts hold that a showing of probable cause is
required to compel a pubic hair sample, because the search involves an area
of the body traditionally concealed from public view as a matter of personal
privacy. n57 Similarly, the Supreme Court has described the privacy
interests inherent in a compelled urine sample as a "host of private medical
facts . . . which might be revealed by the chemical analysis of the sample
fluid, as well as a process of collecting such a sample which may involve
visual or aural monitoring of the act of urination . . . ." n58

Some government searches may be so physically intrusive as to be
unreasonable even when the government has probable cause. In Winston v. Lee,
n59 the Court held that an arrestee's privacy interest in avoiding surgery
to remove a bullet from his collarbone outweighed the state's interest in
recovering the bullet to use as evidence of his guilt. The Court found that
a potential danger from exposure to general anesthesia existed, and the
government had sufficient evidence of guilt to prosecute the arrestee
without the bullet. n60  [*138]

b. Exceptions to the Fourth Amendment's Warrant Requirement: The Balancing
Test

In certain narrowly-defined circumstances, the Supreme Court has authorized
searches in the absence of individualized suspicion of wrongdoing, even when
bodily intrusion is involved. The Court has held that the government need
not have individualized suspicion of wrongdoing when the balance of
interests weighs in the government's favor. Courts must balance the degree
of intrusion upon an individual's privacy against the government interest at
stake. n61 These searches are usually, but not always, conducted by
officials other than the police, in situations where the government's
purpose would be frustrated by requiring probable cause. Furthermore, these
cases differ from those involving traditional law enforcement activity in
that the search is for evidence for administrative or regulatory purposes,
rather than aimed at the discovery of a specific crime; n62 thus, the
typical warrant and probable cause requirements are relaxed.

The Supreme Court has applied the balancing test in a wide range of
circumstances, including housing safety inspections, n63 inspections of
closely regulated businesses, n64 various checkpoint inspections, n65 school
disciplinary searches, n66  [*139]  workplace investigations, n67 and
probation supervision. n68 Certain cases characterize the government
interest as one of "special needs, beyond the normal need for law
enforcement." n69 Perhaps the most often cited "special needs" case is
Skinner v. Railway Labor Executives' Association. n70

In Skinner, the Court recognized the government's "special need" to protect
the public from railroad employees who may be under the influence of drugs
or alcohol during their work hours. The Court upheld federal regulations
requiring that railroad officials collect blood, breath, and urine from
employees involved in railway accidents, for drug and alcohol testing,
without a warrant, without probable cause, and without individualized
suspicion. n71 The Court explained that the purpose of the regulation
requiring the testing was not to assist in the prosecution of employees, but
rather to further the government's special need to investigate railroad
accidents and to prevent injuries that could result if employees were
impaired by drugs or alcohol. n72 Under these circumstances, the Court
reasoned, requiring a warrant would not provide protection against arbitrary
and random government acts because the standardized testing regulations
themselves left no facts for a neutral magistrate to evaluate. n73 The Court
stated  [*140]  that "where the privacy interests implicated by the search
are minimal, and where an important government 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." n74

The "special needs" doctrine was further articulated in a companion case to
Skinner in National Treasury Employees Union v. Von Raab. n75 Von Raab
involved the collection of urine specimens from U.S. Customs Service
employees to check for drug use, without a warrant or individualized
suspicion. n76 The "special need" of the government in this case was to
assure that the Customs officers, who were responsible for confiscating
illegal drugs, were not themselves using drugs. n77 The Court explained that
the government need was greater than the normal needs of law enforcement
because the purpose was to deter drug use among officers seeking promotion
to certain sensitive positions, and not to prosecute employees for a
particular crime. n78

(1) Intrusiveness of the Search: The Data Bank Cases

Government infringement on genetic or informational privacy has been
virtually ignored by courts addressing the constitutionality of state law
enforcement DNA statutes. n79 Most courts conclude that the actual physical
intrusion is minimal and convicted offenders already have reduced general
privacy rights due to their offender status.

In judging the degree of intrusiveness, courts examine the nature of the
search and the circumstances surrounding the search and seizure. n80 Most
courts rely on the Supreme Court's analysis of bodily intrusion in the law
enforcement  [*141]  context presented in Schmerber v. State of California
n81 in finding that a blood test presents only a minimal intrusion. n82 The
Court, in Schmerber, held that it was reasonable under the Fourth Amendment
to take blood involuntarily from a suspected drunk driver at the emergency
room of a hospital. n83 In analyzing the degree of intrusiveness, the Court
noted that blood tests have become routinely required of one entering the
military service or applying for a marriage license. n84 Moreover, the Court
noted that millions of people voluntarily become blood donors. n85 In
addition, when the blood is taken by a physician in a hospital environment,
and according to "accepted medical practices," courts have found the
circumstances of the search and seizure are reasonable under the Fourth
Amendment. n86 Several courts also cite the Supreme Court's decision in
Winston v. Lee, n87 for the proposition that "blood tests do not constitute
an unduly extensive imposition on an individual's personal privacy and
bodily integrity." n88 One court, without analysis, found that only minimal
bodily intrusion was required where a DNA saliva sample was obtained by
rubbing the inside of the cheeks with a sponge on a toothbrushlike handle
for approximately fifteen seconds. n89 Another court stated that, given the
procedural safeguards in the state statute, which limit analysis to
identification, a DNA blood test is more like a fingerprint or voice
exemplar because it involves "none of the probing into an individual's life
and thoughts that marks an interrogation or a search." n90  [*142]

With new technology, the physical intrusions required in collecting DNA may
be de minimis. n91 If the courts balance this minimal physical intrusion
against the governmental interest, then even broader DNA testing for law
enforcement may be upheld. Yet, the intrusion of the search should be viewed
in more general terms. Thus, the courts have examined the intrusion on the
general privacy of the offender who is required to comply with the
statutorily mandated DNA test. For example, the court in People v. Wealer
n92 found only minimal intrusion on a convicted offender's privacy rights
because the DNA test is analogous to fingerprinting for identification
purposes, and an offender has only a minimal interest in his or her identity
after a criminal conviction. Even when convicted persons are released on
parole, they have a diminished expectation of privacy in their identity as
compared to free persons. n93 In relying on Schmerber and Winston, the
courts have ignored that, in both cases, the government had probable cause
to believe the arrestee committed a crime, that the evidence sought was
evidence of that crime, and that the Court emphasized the affront to bodily
integrity and dignity interests in both cases. n94  [*143]

(2) The Government Interest: The Data Bank Cases, City of Indianapolis v.
Edmond, and Ferguson v. City of Charleston

The convicted offender data bank cases have uniformly declared significant
government interests in identifying and prosecuting criminals and deterring
recidivist acts, n95 deterring and prosecuting unsolved and future criminal
acts, n96 preserving a permanent identification record for identifying
felons who may have otherwise altered their identify, and improving law
enforcement. n97 Those courts attempting to characterize the government
interest as a "special need" beyond normal law enforcement have had a
particularly difficult time in reconciling the concept of identification and
prosecution of criminals as something other than "law enforcement." For
example, in State v. Olivas, n98 which upheld the Washington DNA testing
statute, the court stated that the purpose of the DNA data bank was to deter
and prosecute recidivist acts, and that this purpose was a "special need" of
government beyond "normal" law enforcement. Even so, the Olivas court
admitted that the reasoning in Skinner and Von Raab, where drug tests were
used only for deterrence of employee drug use, and not for prosecution,
could not be applied squarely to a DNA testing case. n99

Another court, noting that the purpose of the Pennsylvania DNA testing
statute was to be "a tool in criminal investigations and for deterrence of
recidivist crime," n100 held the statute constitutional under the Fourth
Amendment in light of the government's "special need" to maintain an
identification system to facilitate the purpose of the statute. n101 One
court  [*144]  stated unequivocally that the state's DNA testing of prison
inmates was "ultimately for a law enforcement goal," yet the court reasoned
that the statute still fit within the "special needs" analysis because it
was "not undertaken for the investigation of a specific crime." n102

The court in Roe v. Marcotte n103 extended the "special needs" doctrine a
step further. First, the court recognized that the "special needs" cases
involving prisons were not precisely on point because the purpose of the
state DNA statute was not related to protecting inmate health or safety, or
concerns for institutional order or discipline. n104 Yet, the court
reasoned, the statute may still be constitutional if there is "some other
significant governmental interest in the form of 'special needs beyond
normal law enforcement,' even if those 'special needs' are not directly tied
to institutional concerns." n105

(3) The Identification Exception

Courts reviewing the convicted offender DNA data bank cases have
consistently held that government-compelled DNA extraction constitutes a
search subject to Fourth Amendment analysis. n106 In light of rapid
technological advancements, however, DNA may soon be extracted with
virtually no bodily intrusion. If the government could take one's DNA
without intrusion upon one's personal security or privacy expectations,
then, arguably, no Fourth Amendment violation would exist. Moreover, the
government has a legitimate interest in identifying the individuals it
arrests or convicts. Identifying information would be essential in the event
of a prisoner escape, or where the prisoner's physical appearance is
altered.

Taking fingerprints or photographs upon arrest has not been held to violate
the Fourth Amendment. n107 Under the same  [*145]  reasoning, one could
argue that taking DNA in a non-intrusive manner solely for identification
purposes most likely would not violate the Fourth Amendment. Several courts
bolster this point by focusing on the reduced expectation of privacy an
offender has in his or her identity. In the earliest case to address the
constitutionality of a state DNA testing statute, the Fourth Circuit, in
Jones v. Murray, n108 based its decision upholding the Virginia statute on
the diminished privacy rights of convicted prisoners. The court reasoned
that when a person is arrested, the arrestee's identity becomes a matter of
government interest, and the arrestee must submit to fingerprinting whether
or not the crime involved fingerprint evidence. n109 The court held that
when an offender is lawfully in state custody, "as with fingerprinting, . .
. the Fourth Amendment does not require an additional finding of
individualized suspicion before blood can be taken from incarcerated felons
for the purpose of identifying them." n110

Similarly, the Ninth Circuit, in Rise v. Oregon, n111 analogized taking DNA
from a convicted offender to taking fingerprints, noting that, although
taking fingerprints from a "free person" implicated privacy rights and
required probable cause, this was not the case when fingerprints were
routinely taken from arrestees for identification purposes during the
booking process. n112 Once convicted, the court reasoned, one's identity is
a matter of state interest, and the offender "has lost any legitimate
expectation of privacy in the identifying information derived from blood
sampling." n113 Moreover, in Landry v. Attorney General, n114 the
Massachusetts Supreme Judicial Court held that taking a DNA sample is only
minimally more intrusive than taking and storing fingerprints or
photographs, and this minimal intrusion is only for the  [*146]  purpose of
adding to a record of identity and is not a search for evidence. The Landry
court reasoned that the convicted offender's low expectation of privacy in
his identity was outweighed by the state's interest in preserving a
permanent identification record of convicted offenders to resolve past and
future crimes. n115 Where the state has traditionally used fingerprints for
this purpose, the court announced, it would now use DNA identification. n116

2. Other Legal Challenges

a. Equal Protection

The Fourteenth Amendment to the U.S. Constitution provides that no state
shall "deny any person within its jurisdiction the equal protection of the
laws." n117 Some inmates have argued that state laws requiring DNA samples
only from certain classes of offenders treat them differently from others
offenders not required to provide DNA samples. n118 Because the
classification of "sex offender" or "murderer" is based on the nature of the
inmate's offense and not on a suspect class (such as race), these challenges
to the DNA statutes receive "rational basis" review. n119 Under this test,
the statute is presumed valid if the offender classification is rationally
related to a legitimate state interest. n120 Courts reviewing inmates' equal
protection claims consistently find a rational relationship between the
government's classification of certain offenders and the  [*147]
government's objective to investigate and prosecute similar classes of
unsolved and future crimes. n121

b. Cruel and Unusual Punishment

The Eighth Amendment prohibits government imposition of cruel and unusual
punishment. n122 A prison inmate has an Eighth Amendment claim when actions
of prison officials amount to the "unnecessary and wanton infliction of
pain," n123 or when officials act with "deliberate indifference" to serious
medical needs n124 or act "maliciously and sadistically to cause harm." n125
The alleged deprivation must be sufficiently serious to deny "the minimal
civilized measure of life's necessities." n126 Inmate challenges to DNA data
bank statutes have alleged, among other things, that prison officials used
excessive force to obtain DNA samples, that an inmate's rights were violated
when he was placed indefinitely in administrative segregation until he
consented to provide a DNA sample, n127 and that the actual blood test
itself constituted cruel and unusual punishment. n128 Courts have rejected
these arguments and viewed an inmate's refusal to provide a DNA sample as a
refusal to comply with a direct administrative  [*148]  order, and state
statutes typically permit the use of force by prison officials to ensure
compliance with lawful orders. n129

c. Ex Post Facto

The Ex Post Facto Clause of the United States Constitution n130 prohibits
the states from "retroactively altering the definition of crimes or
increasing the punishment for criminal acts." n131 Even though state DNA
statutes typically apply to persons convicted prior to the statute's
enactment, courts have not found violation of the Ex Post Facto Clause as
long as the statute does not amend the state's substantive criminal laws and
the statute's "overall design and effect" indicates a "non-punitive intent."
n132 Statutes requiring certain offenders to provide a DNA sample for the
data bank are considered administrative, rather than penal. n133 Thus, when
a prisoner loses "good-time credit" for refusing to submit to DNA sampling,
the Ex Post Facto Clause is not violated. n134 Just as an inmate is awarded
good-time credit for compliance with administrative regulations, one court
reasoned, he can lose credit for non-compliance. n135 However, in Jones v.
Murray, n136 the court held the Ex Post Facto Clause was violated where an
inmate's statutorily mandated release date was delayed when he refused to
provide a DNA sample. At the time the inmate was sentenced, a statute
mandated parole six  [*149]  months prior to the inmate's release date. A
subsequent statute was passed requiring the inmate to provide a blood sample
as a condition of his release from custody. The court held that the statute
was ex post facto because it denied the inmate a sentence benefit that he
had at the time the offense was committed. n137

d. Self-Incrimination

The Fifth Amendment privilege against self-incrimination protects an
accused's right to remain silent unless he or she chooses to speak. n138 The
government may not compel an accused to testify against himself or herself,
or to provide the state with testimonial evidence or evidence of a
communicative nature, n139 such as incriminating private books and records.
n140 The privilege does not, however, protect an accused against compulsion
to produce a voice exemplar, n141 submit to fingerprinting, photography,
measurements, to appear in court, to stand, to walk, or to make a particular
gesture. n142 Neither does the Fifth Amendment protect the accused from the
compelled production of blood n143 or urine. n144 Courts examining the
constitutionality of the state data bank statutes have consistently held
that the DNA contained in one's blood or saliva is nontestimonial, and no
Fifth Amendment privilege is violated. n145  [*150]

e. Procedural and Substantive Due Process

The Fourteenth Amendment provides that no state shall "deprive any person of
life, liberty, or property, without due process of law. . . ." n146
Offenders' procedural due process claims focus on their denial of notice or
a hearing before they are compelled to provide a DNA sample. The argument
that one state's DNA statute violated an inmate's due process rights because
it did not require that notice be given to individuals whose DNA is seized
was rejected because the statute itself provided notice that all convicted
felons would be required to give a blood sample for DNA analysis. n147
Similarly, an inmate's complaint that the Due Process Clause required prison
officials to provide him with a hearing before forcing him to provide a
blood sample was rejected because the state's DNA statute required only a
conviction for a predicate offense before a DNA sample was required; thus,
there was nothing to be contested at a hearing. n148 For the same reason,
another court rejected an inmate's claim that prison officials deprived him
of a property interest in his blood without due process or just
compensation. n149

The Supreme Court has interpreted the Fourteenth Amendment's guarantee of
"due process of law" as including a substantive component. n150 Substantive
due process rights are violated by government actions that "offend those
canons of decency and fairness which express the notions of justice," n151
and refer to those constitutional guarantees that are "implicit in the
concept of ordered liberty." n152 In Rochin v. California, n153 the Court
held that the Due Process Clause was violated when police handcuffed a
suspect, took him to a hospital, and had his stomach forcibly pumped to
reveal two morphine capsules. n154  [*151]  The Court stated that such
behavior "shocks the conscience" n155 and "offends a sense of justice" n156
and amounted to a confession wrested from defendant's body by physical
abuse. n157 In contrast, courts have rejected inmate claims under due
process analysis, finding that no due process violation occurs when blood is
drawn for DNA analysis according to medically acceptable protocols. n158

f. Separation of Powers

Under the doctrine of separation of powers, also called the "inviolability
of final judgment" rule, a court's final judgment, which includes the
defendant's sentence, may not be altered by subsequent legislative changes.
n159 In a Pennsylvania case, an inmate challenged a state statute providing
that a prisoner who refuses to submit to DNA testing must remain confined
until serving the maximum sentence. n160 The court held that the statute did
not violate the separation of powers doctrine because it did not alter the
inmate's parole eligibility date nor his maximum sentence. n161 The power to
parole, reasoned the court, is an administrative function that depends on
compliance with many different prison rules and administrative requirements,
and the state statute presented an administrative requirement that must be
satisfied prior to release. n162

However, the Illinois Supreme Court held that a state statute requiring the
court to use its contempt power to enforce administrative orders to collect
blood samples from convicted offenders was unconstitutional under the
Illinois constitution's separation of powers provision. n163 That court
noted, however, that the blood collection program could still be executed
independently of the unconstitutional contempt provision. n164  [*152]

3. The Constitutionality of Expanded DNA Law Enforcement Data Banks

Equal protection, cruel and unusual punishment, ex post facto,
self-incrimination, due process, and separation of powers claims have made
virtually no headway in the lower courts, and the Supreme Court has given no
indication that constitutional challenges to state DNA data bank laws on
these grounds would be successful. Should the Court grant review on the
issue of the constitutionality of expanded DNA law enforcement data banks,
it is most likely to do so to consider Fourth Amendment issues. Two recent
decisions of the Court raise serious questions about the "government
interest" aspect of the balancing test applied by the lower courts in the
Fourth Amendment data bank cases.

In City of Indianapolis v. Edmond, n165 motorists brought a class action
against the city, alleging that its drug interdiction checkpoint violated
their rights under the Fourth Amendment. n166 The city conceded that the
goal of the checkpoint program was to catch drug offenders. n167 The Court
began its analysis with an overview of the "limited circumstances" in which
a suspicionless search is reasonable, citing the employee drug testing cases
of Von Raab and Skinner, as well as the Court's early roadblock and
checkpoint cases. n168 The Court stated that in none of these cases had it
ever indicated approval of a checkpoint program "whose primary purpose was
to detect evidence of ordinary criminal wrongdoing." n169 The Court said
that in the checkpoint cases the government interest was specific and the
program was related to that interest, for example, policing the Nation's
borders where stemming illegal immigration could not be accomplished any
other way; reducing the immediate hazard posed by drunk drivers on the
highways where there was an obvious connection between highway safety and
the checkpoint  [*153]  program; and allowing vehicle inspections because
proper licensing and registration is related to highway safety. n170 These
interests, according to the Court, were distinct from the general purpose of
investigating crime. The city's narcotics checkpoint program differed from
the previous cases because its primary purpose was "to advance the general
interest in crime control." n171

The city argued that its checkpoint program was justified by a lawful
secondary purpose of checking vehicles and keeping impaired drivers off the
road, but the Court dismissed this point, stating that "if this were the
case . . . law enforcement authorities would be able to establish
checkpoints for virtually any purpose so long as they also included a
license or sobriety check." n172 The Court held that the city's program was
unconstitutional under the Fourth Amendment because its primary purpose was
"ultimately indistinguishable from the general interest in crime control . .
. ." n173 Absent some indicia of individualized suspicion, the search was
illegal. The Edmond case, therefore, calls into question the reasoning of
the courts in essentially all of the DNA data bank cases with respect to
their characterization of the "government interest" side of the balancing
test, which is "virtually indistinguishable from the general interest in
crime control."

More recently, in Ferguson v. City of Charleston, n174 the Supreme Court
applied the Edmond "primary purpose test" to a case described by the lower
court as a "special needs" case. In Ferguson, a state university hospital
tested the urine of certain of its obstetrical patients suspected of drug
use and notified police of positive drug screens. The hospital conducted the
drug tests in accordance with a hospital policy developed in conjunction
with law enforcement officials. Maternity patients arrested after testing
positive for cocaine challenged the hospital's policy, claiming the drug
tests were an unconstitutional search under the Fourth Amendment. n175 The
 [*154]  hospital policy provided for, among other things, a chain of
custody for the urine sample so it could be used in later prosecutions, a
range of possible criminal charges, and police notification and patient
arrest after a positive test. n176 The city argued that the hospital policy
met the special needs exception to the Fourth Amendment's warrant
requirement because the hospital had a need to facilitate the mother's drug
treatment, and to protect the mother and unborn child--a need the hospital
claimed was distinct from the normal needs of law enforcement. n177

The Supreme Court held that the hospital policy violated the Fourth
Amendment. The Court noted the extensive involvement of police and
prosecutors throughout the development of the policy and it held that
although the ultimate goal of the hospital policy may have been to get the
women off drugs and into a substance abuse program for the benefit of both
mother and baby, the policy was unconstitutional because "the immediate
objective of the searches was to generate evidence for law enforcement
purposes . . . ." n178 The Court said that "virtually any nonconsensual
suspicionless search could be immunized under the special needs doctrine by
defining the search solely in terms of its ultimate, rather than immediate,
purpose." n179 The Court distinguished its other special needs cases, which
had legitimate civil objectives, and did not involve the extensive
entanglement of law enforcement as did this case. n180

Edmond and Ferguson raise serious Fourth Amendment concerns with respect to
the constitutionality of the data bank laws, and even greater concerns as to
the constitutionality of state statutes that require DNA from certain
classes of offenders upon arrest. n181 Virtually all of the lower courts
considering the question agree that the bodily intrusion involved in
extracting DNA constitutes a search, and that the  [*155]  primary
government purpose is general crime control and investigation--now an
unconstitutional "primary purpose" under Edmond and Ferguson. Thus, courts
seem to be faced with two choices: either distinguish these Supreme Court
cases characterizing the primary purpose of the DNA data bank to be
something other than general crime control, or view DNA sampling under the
identification exception.

It is uncertain how the courts would reconcile Edmond and Ferguson with the
existence of the DNA data bank. Perhaps courts could more easily hold the
data bank constitutional if it were limited to profiles of sex offenders and
violent felons, as opposed to the "all felonies" allowed by seven states.
n182 If statistics supported the likelihood of recidivism and that these
particular criminals were more likely to leave DNA at the crime scene, then
perhaps the "primary purpose" of the data bank program could be
characterized as controlling recidivism of these specific classes of
offenders, rather than the unconstitutional purpose of general crime
control. Even so, this analysis is tenuous in light of the recent Supreme
Court cases.

A second possibility would be for the courts simply to view DNA sampling as
a relatively non-invasive administrative means of identification which, like
fingerprints or photographs, does not implicate the Fourth Amendment. Courts
have not viewed piercing the skin to draw blood as particularly intrusive as
long as medically accepted practices are employed, and using a buccal swab
to obtain a DNA sample from saliva is even less intrusive. Under the
identification exception, then, the government could compel a DNA sample
from all persons whom it has a legitimate need to identify. Arguably, DNA
could be taken subsequent to an arrest based upon probable cause,
digitalized, stored, and accessed to solve past and future crimes, all
without running afoul of the Fourth Amendment, so long as the primary
purpose of the initial testing was identification. n183  [*156]

A broad, fingerprint-like identification exception would ignore the
fundamental differences between DNA and fingerprints. A fingerprint reveals
only unique patterns of loops and whorls. In contrast, a DNA sample is the
information-containing blueprint of human life, revealing one's genetic
predisposition to disease, physical and mental characteristics, and a host
of other private facts not evident to the public. Unlike fingerprint
analysis, DNA analysis does not necessarily end with a DNA identification
profile. Typical law enforcement practice today is to retain the subject's
DNA sample indefinitely because of the possibility that technological
advancements might require re-testing of the samples. n184 Indefinite sample
retention increases the opportunity for misuse or abuse of the samples and
intrusion on the privacy of individuals providing the identifiable samples.
Moreover, many state statutes allow access to the samples for undefined law
enforcement purposes n185 and humanitarian identification purposes, n186 or
authorize the use of samples for assisting medical research n187 or to
support identification research and protocol development. n188 No statutes
provide for the informed consent of the DNA donors prior to conducting such
research. n189 Unlike the laboratory analysis of fingerprints, the Supreme
Court has recognized that a laboratory analysis of blood and other bodily
fluids constitutes a "second search" subject to the  [*157]  Fourth
Amendment's reasonableness requirement. n190 Thus, any reasonableness
determination ought to include an analysis of the use that law enforcement
authorities intend to make of the DNA sample. n191

II. Policy Issues

A. The Scope of Law Enforcement DNA Data Banks

The constitutionality of expanding the scope of law enforcement data banks
will remain unresolved in the absence of a definitive ruling by the Supreme
Court. Despite constitutional issues of some gravity, it is quite possible
that expanded data banking would be upheld by the Supreme Court. Just
because a law is constitutional, however, does not necessarily mean that it
reflects sound public policy. Thus, legislators, law enforcement officials,
and all citizens interested in DNA forensics need to consider a range of
issues in addition to predictions about whether a proposed law is
constitutional.

In little more than a decade, DNA has proven to be the most powerful
forensic tool ever developed. It is this power to convict the guilty and
exonerate the innocent that has provided the impetus to expand the scope of
data banks beyond sex offenders. n192 In 2000, in response to a request from
thenAttorney General Janet Reno, the U.S. National Commission on the Future
of DNA Evidence considered whether data banks should be expanded to include
samples from arrestees. The Commission recommended against including
arrestees on the ground that there were already hundreds of thousands of
 [*158]  samples waiting to be analyzed and there was no practical way that
the state crime laboratories could process more samples. n193 Such a concern
is likely to be transitory or amenable to resolution through increased
funding. Therefore, the issues still need to be addressed directly from a
policy rather than a practical standpoint.

The argument in favor of expanding the scope of the data banks is easy to
characterize. The more samples in the data bank, the greater the likelihood
of a match or "cold hit." n194 This is a reasonable inference, but there is
little empirical evidence. n195 If public policy must balance a range of
increasingly intrusive options to individual rights against the asserted
benefits to law enforcement, it is incumbent upon those advocating an
expansion of police powers to demonstrate how substantial public interests
in deterrence and justice are fostered by expanded DNA data banks.

A variety of arguments have been raised in opposition to expanding the scope
of the DNA data banks. Some commonly raised objections are that samples
could be analyzed to reveal future health risks n196 and that this
information might be disclosed to third parties such as insurers and
employers, n197 that the information could be used for research into
purported genetic links to criminality, n198 and that the information could
be  [*159]  used for child support or immigration purposes. These and
related concerns about improper uses of DNA samples would be eliminated if
only noncoding regions of DNA were analyzed and the samples were destroyed
after analysis. n199 What would remain would be a computerized code of
numbers with no value whatsoever beyond identification. n200

Even the above safeguards are unlikely to convince individuals who believe
that the balance between law enforcement and civil liberties would be tilted
too far in the  [*160]  direction of law enforcement if broader DNA data
banks were established. The opportunity to solve more crimes would not
justify having every citizen's DNA analyzed for law enforcement purposes.

In deciding challenges to existing data bank laws, several judges have
expressed concerns about possible expansions of the data banks. For example,
in Jones v. Murray, n201 the United States Court of Appeals for the Fourth
Circuit upheld the constitutionality of the Virginia data bank law, which
requires samples from all felons, even those who have been convicted of
nonviolent crimes. The decision to include all felons in the data bank was
made for administrative convenience, rather than to improve law enforcement.
The dissenting judge wrote that the case

leads me to a deep, disturbing, and overriding concern that, without a
proper and compelling justification, the Commonwealth may be successful in
taking significant strides toward establishment of a future police state, in
which broad and vague concerns for administrative efficiency will serve to
support substantial intrusions into the privacy of citizens. n202

In State v. Olivas, n203 in upholding the Washington statute, the concurring
opinion stated: "We would be appalled, I hope, if the State mandated
non-consensual blood tests of the public at large for purposes of developing
a comprehensive Washington DNA databank." n204

We are willing to concede that a nationwide data bank is likely to be
valuable to law enforcement personnel. Having such value is an important but
not necessarily determinative factor in deciding the appropriate scope of
the data bank. A  [*161]  variety of law enforcement methods we deem
socially unacceptable (if not unconstitutional), if used, would likely lead
to more convictions and perhaps even a reduction in crime. Some law
enforcement measures used in other parts of the world would not be
countenanced here. Although a coerced confession, for example, is quite
different from compiling a large-scale DNA data bank, the broad issue of
societal values pertains to both. As one commentator argued, "Ultimately,
determining who should be in a forensic DNA data bank will require balancing
the quantifiable law enforcement benefits that large data banks can confer
against the less quantifiable, but nonetheless real, risks to civil
liberties that they may implicate." n205

B. Other Issues

Regardless of the scope of law enforcement DNA data banks, other issues need
to be addressed in balancing the interests of law enforcement against
individual interests in privacy. The following measures should be
implemented.

1. Sample collection -Current collection methods use both blood samples and
buccal swabs. Using buccal swabs is less invasive, which minimizes sample
source objections and legal challenges.

2. Analytical methods -Current analytical methods use polymerase chain
reaction ("PCR"), restriction fragment length polymorphism ("RFLP"), and
short tandem repeat ("STR") technologies. n206 Analytical methods should be
standardized, and STR represents the best current technology. n207  [*162]

3. DNA to be analyzed -Only non-coding regions of DNA n208 should be used
for analysis, thereby ensuring that the only possible use of the DNA
analysis is identification. n209

The use of noncoding regions is endorsed by experts at the FBI. According to
two leading DNA forensic experts for the FBI:

Unlike medically oriented DNA analyses, forensic DNA typing does not derive
the donor's predisposition to genetic diseases or the expression of genetic
disease conditions. The genetic loci used in forensic DNA typing are
selected for certain attributes, which include genetic variability among
individuals, stability, and ease of assay. The majority of genetic markers
used in DNA typing are noncoding segments in the human genome. No known
function encoded in these repetitive DNA sequences might predispose an
individual to a particular disease or attribute. n210

 [*163]

4. Laboratory certification -All laboratories maintaining forensic DNA data
bases should be certified and adhere to the highest standards of technical
proficiency, including quality assurance and quality control protocols. n211
The American Society of Crime Laboratory Directors--Laboratory Accreditation
Board accredits forensic laboratories.

5. Statistical and Reporting Issues -All statistical methodologies used for
determining a match between a crime scene or other sample and a DNA profile
in the data bank should adhere to the latest scientific principles. n212

6. Destruction of samples -Law enforcement officials, including the FBI,
favor retaining samples indefinitely for quality assurance and retyping the
samples in the event of changing technology. n213 Twenty-nine state laws
either authorize or require that agencies retain samples after analysis;
only one state (Wisconsin) requires the destruction of samples, and no
samples have actually been destroyed. n214 The retention of samples,
however, even under conditions of stringent security, raises concerns among
the public that the samples could be reanalyzed for purposes other than
identification. Therefore, samples should be destroyed immediately after
analysis.  [*164]

It is important to keep in mind that retaining the original sample in a
forensic DNA repository for possible reanalysis is not necessary to prevent
erroneous matches. If a suspect whose DNA is matched to crime scene evidence
believes that the match is erroneous, the suspect can merely provide a new
sample for comparison. Only the crime scene evidence needs to be retained.
Consequently, destruction of the sample after analysis provides further
assurance that the sample will not be reanalyzed for an improper purpose
without interfering with the lawful use of the sample by law enforcement.
"The National Academy of Sciences, recognizing the risks to privacy and
individual autonomy that stored DNA samples can present, has recommended
that samples taken from convicted offenders for data banks be destroyed
'promptly' after being analyzed." n215

7. Access to data bank -Access to the data banks should be limited to law
enforcement personnel, and data banks should not be used for any purpose
other than identification, including research. n216 It is well settled that
government funded or sponsored research involving human subjects requires
voluntary, informed consent. n217 Legally-mandated consent or coerced
consent from offenders as a condition of their release would not satisfy
this standard. More fundamentally, as a matter of policy if not law, to
justify a governmental intrusion there should be a compelling government
interest. With certain limitations, law enforcement would be such an
 [*165]  interest but research, except research incident to data bank
quality assurance, would not meet this burden.

8. Scope of data bank - DNA data banks should be limited to DNA obtained
from individuals convicted of violent sex offenses and other violent
felonies. For these offenders, the magnitude of the crime, concerns about
recidivism, and the likelihood of having DNA evidence at a subsequent crime
scene outweigh their privacy interests in not having to submit a DNA sample.
The original legislative enactments were wise in limiting DNA samples to
this class of felons. Excitement about the law enforcement potential of
wider sampling should not be permitted to dominate policy development.

State legislatures throughout the country are debating the issue of where to
draw the lines in mandating that offenders be included in state forensic DNA
data banks. There are many possible categories: violent felons, all felons,
all convicts, all arrestees, and the general population. We reject the
notion of including all arrestees or everyone, and we believe that limiting
the class of individuals to violent felons is the most defensible
demarcation. n218  [*166]

9. Sanctions for violations -Federal law provides for a $ 100,000 fine for
the unauthorized disclosure of information in a law enforcement data bank,
n219 but most states do not provide for any sanctions. n220 All
jurisdictions should provide for legal sanctions to deter the unauthorized
access to or use of data bank information.

Conclusion

In disparate areas of daily life too numerous to mention, the DNA revolution
has been thrust upon society so quickly that often there has not been
adequate opportunity for reflection. Law enforcement is no exception. In a
few years' time, DNA evidence has become admissible in every jurisdiction in
the United States, and it is often compelling evidence of guilt or
innocence. With computer data bases of previously analyzed and personally
identified DNA samples, it is easy to determine the source of DNA samples
left at crime scenes by previously unknown culprits. The temptation to
include in law enforcement DNA data banks more samples from more
individuals--or all individuals--is alluring. Yet, sweeping sample
collection strategies, requiring law abiding citizens, suspects, and
convicts alike to submit DNA for use by the criminal justice system may be
going too far. As Illinois Supreme Court Justice Walter Schaefer wrote: "The
quality of a nation's civilization can be largely measured by the methods it
uses in the enforcement of its criminal law." n221

Balancing the interests in expanded forensic DNA data banks is extremely
complicated. On one side are the appealing and concrete--if difficult to
quantify--benefits of preventing and solving a range of crimes. On the other
side are abstract  [*167]  interests in the freedom to be left alone from
governmental demands for bodily specimens. One may question how individuals
are harmed by submitting a DNA sample for use in law enforcement
identification. The same could be said for mandatory submission of
fingerprints, photographs, handwriting samples, voice exemplars, urine
samples, and hair samples. Would there be any harm if the government
demanded that every individual submit all of these samples? Although some
people might view the cumulative demands as establishing a closer case, this
is still the wrong question. The essence of the Fourth Amendment (and the
more general principle of personal privacy) is to establish a sphere of
inviolability surrounding the individual. The real question, then, is
whether the government interest is so compelling as to overcome the
presumption that the autonomy, dignity, and physical integrity of the
individual should not be disturbed.

The issue of forensic DNA data banks does not arise in a vacuum. In the
emerging world of electronic communications, biotechnology, and
computerization, important social questions are continually emerging
regarding privacy, confidentiality, and anonymity. A major source of
legislative activity at both the federal and state levels involves
determining the appropriate degree of privacy protection for medical
information, credit information, consumer information, personal data, and
numerous other bits of information. In Whalen v. Roe, n222 the Supreme Court
upheld the constitutionality of a state computer bank containing the records
of prescriptions for Schedule II drugs. Justice Brennan wrote in his
concurrence:

Collection and storage of data by the State that is in itself legitimate is
not rendered unconstitutional simply because new technology makes the
State's operations more efficient. However, as the example of the Fourth
Amendment shows, the Constitution puts limits not only on the type of
information the State may gather, but also on the means it may use to gather
it. The central storage and easy accessibility of computerized data vastly
increase the potential for abuse of that information, and I am not prepared
to say that future developments will not demonstrate the necessity of some
curb on such technology. n223

 [*168]

Despite the dazzling and often befuddling new technology, the issue is
simply how to utilize new technology in a way consistent with societal
values. Our society and laws have dealt with the issue before, and it is
something that undoubtedly will arise repeatedly in the future. There is,
inevitably, a tradeoff between law enforcement and civil liberties. The
promise of new technology in aid of law enforcement is seductive; yet, the
constitutionally protected sphere of privacy, once breached, will not be
easily restored.

The celebrated case of Olmstead v. United States n224 raises issues
analogous to those we see today with DNA law enforcement data banks. In
Olmstead, a majority of the Supreme Court held that the strictures of the
Fourth Amendment did not apply to the new technology of wiretapping because,
in the majority's view, the Fourth Amendment applied only to physical
invasions of one's person or property, a position since repudiated by the
Supreme Court. n225

Justice Brandeis' dissent in Olmstead is legendary, and it rings true today.
Brandeis believed that the Constitution is a "living document," and the law
should view new technologies in light of the underlying constitutional
values they implicate. "Time works changes, brings into existence new
conditions and purposes. Therefore a principle to be vital must be capable
of wider application than the mischief which gave it birth." n226 To
Brandeis, it was absolutely essential for the Fourth Amendment to be
construed broadly and applied to new technology that could not have been
anticipated by the framers of the Constitution. n227

The makers of our Constitution undertook to secure conditions favorable to
the pursuit of happiness . . . .They conferred, as against the Government,
the right to be let alone, the most comprehensive of rights and the right
most valued by civilized men. To protect that  [*169]  right, every
unjustifiable intrusion by the Government upon the privacy of the
individual, whatever the means employed, must be deemed a violation of the
Fourth Amendment. n228

In a frequently quoted passage, Brandeis eloquently addressed the issue of
whether the infringement upon Fourth Amendment rights is justified by the
government interest in law enforcement and protecting the safety and
security of the citizenry.

And it is also immaterial that the intrusion was in aid of law enforcement.
Experience should teach us to be most on our guard to protect liberty when
the Government's purposes are beneficent. Men born to freedom are naturally
alert to repel invasion of their liberty by evil-minded rulers. The greatest
dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding. n229

Today, there is great zeal to broaden the scope of law enforcement DNA data
banks. We should resist the temptation to extend the scope of data banks
beyond criminals convicted of violent felonies. Furthermore, other measures
outlined in this Article, including analyzing only non-coding regions of
DNA, destroying samples after analysis, prohibiting uses beyond law
enforcement identification, and providing substantial penalties for
violations of the law, are necessary to ensure that liberty is not ensnared
by a dragnet of DNA.  [*170]

APPENDIX

[SEE TABLE IN ORIGINAL]

FOOTNOTES:
n1 See generally Alec Jeffreys et al., Individual Specific "Fingerprints" of
Human DNA, 316 Nature 76 (1985).

n2 See Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988)
(affirming conviction in first reported U.S. case to admit DNA
identification evidence).

n3 2 Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence ¤
18-5(A) (3d ed. 1999).

n4 See generally Joseph Wambaugh, The Blooding (1989).

n5 The other main alternative, mass sweeps or screens, are of less value in
a large, mobile population and may raise serious constitutional questions.
Cf. Davis v. Mississippi, 394 U.S. 721 (1969) (rounding up and
fingerprinting twenty-four black males after rape victim told police that
her assailant was a black male violated the Fourth Amendment).

n6 42 U.S.C. ¤ 1370 (1999) (appropriating $ 20 million for the federal
system and $ 40 million for the states).

n7 See infra Appendix, Tbl. 1.

n8 See, e.g., Ky. Rev. Stat. Ann. ¤ 17.170 (Michie 2000); Utah Code Ann. ¤
53-10-403 (2000).

n9 See, e.g., N.M. Stat. Ann. ¤ ¤ 29-16-3, -6 (Michie 2000); N.Y. Exec. Law
¤ 995 (McKinney 2000).

n10 See, e.g., Ala. Code ¤ ¤ 36-18-24, 13A-9-91 (2000) (illegal possession
of food stamps); Ga. Code Ann. ¤ ¤ 16-10-71, 24-4-60 (2000) (false
swearing); Wyo. Stat. Ann. ¤ ¤ 6-2-402, 7-19-403 (Michie 2000) (blackmail).

n11 See infra notes 79-94 and accompanying text.

n12 See Jayson Blair, Police Chiefs Join in Call for More DNA Sampling, N.Y.
Times, Aug. 16, 1999, at B-5 (quoting N.Y. City Police Commissioner Howard
Safir); Laylan Copelin, Allow DNA Samples at Arrests, Officials Urge; Police
Chief, DA Seek, Austin American-Statesman, June 9, 2000, at A1 (reporting
the views of Austin Police Chief Stan Knee and Travis County (Tex.) District
Attorney Ronnie Earle).

n13 See Akhil Reed Amar, A Safe Intrusion, Am. Law., June, 2001, at 69
(advocating establishing DNA data bank for all citizens, but including some
of the precautions suggested in this article, such as destruction of samples
after analysis and analyzing only non-coding regions of the genome). See
also UK Police Chief Calls for a National DNA Database, 400 Nature 106
(1998). But see Teresa K. Baumann, Note, Proxy Consent and a National DNA
Databank: An Unethical and Discriminatory Combination, 86 Iowa L. Rev. 667,
675 (2001) (opposing national DNA data bank).

n14 Jonathan Kimmelman, Risking Ethical Insolvency: A Survey of Trends in
Criminal DNA Databanking, 28 J.L. Med. & Ethics 209, 213 (2000).

n15 This is certainly the assumption underlying the enactment of
increasingly broad state laws and proposals to extend the scope of law
enforcement DNA data banks. There is a dearth of empirical evidence,
however, about the expected law enforcement benefits of ever-greater
incursions into the privacy of greater numbers of individuals.

n16 42 U.S.C. ¤ 14132 (1999).

n17 The FBI's CODIS system was started in 1989. Randall S. Murch & Bruce
Budowle, Are Developments in Forensic Applications of DNA Technology
Consistent with Privacy Protections?, in Genetic Secrets: Protecting Privacy
And Confidentiality In The Genetic Era 212, 220 (Mark A. Rothstein ed.
1997).

n18 42 U.S.C. ¤ 14135 (1999).

n19 42 U.S.C. ¤ 14132 (1999).

n20 42 U.S.C. ¤ 14131 (1999).

n21 See infra Appendix, Tbl. 1.

n22 DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-580, 114
Stat. 2726 (Dec. 29, 2000).

n23 S.D. Codified Laws ¤ 23-5-14 (Michie Supp. 1999) (deleting earlier
provision permitting DNA testing of arrestees).

n24 La. Rev. Stat. Ann. ¤ 15.609 (West 1999).

n25 Cal. Penal Code ¤ ¤ 296, 296.1, 297, 298, 299, 299.5 (West 2001). "A
suspect" is defined as "a person against whom an information or indictment
has been filed for one of the crimes listed . . . . A person shall remain a
suspect for two years from the date of the filing of the information or
indictment or until the DNA laboratory receives notification that the person
has been acquitted or the charges dismissed." Id. at ¤ 297 (B)(3).

n26 In 2000, nineteen states considered bills to expand the categories of
offenders from whom DNA samples are required and eight states enacted
legislation. In 2001, 110 bills have been introduced in thirty-five states
to include more offenders, and it is estimated that twenty-two states will
enact legislation. Tim Schellberg, DNA Database Expansion in the 2001 State
Legislatures (Presentation at the National Institute of Justice's Second
Annual Grantees' Workshop June 8, 2001).

n27 See Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993).

n28 See Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994).

n29 See Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999).

n30 See Johnson v. Commonwealth, 529 S.E.2d 769 (Va.) cert. denied, 121 S.
Ct. 432 (2000).

n31 U.S. Const. amend. IV. The Fourth Amendment provides:

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.

Id.

n32 U.S. Const. amend. XIV ¤ 1 provides that no State shall "deprive any
person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the laws." Id.

n33 See Wong Sun v. United States, 371 U.S. 471, 481-82 (1963).

n34 See Illinois v. McArthur, 121 S. Ct. 946, 949 (2001) (citing Texas v.
Brown, 460 U.S. 730, 739 (1983)).

n35 See McArthur, 121 S. Ct. at 949.

n36 See generally Ferguson v. City of Charleston, 121 S. Ct. 1281 (2001).

n37 See Olmstead v. United States, 277 U.S. 438, 464-66 (1928) (holding
there was no constitutional violation without physical trespass of person or
property).

n38 See Silverman v. United States, 365 U.S. 505, 511 (1961) (deciding that
oral statements overheard without technical trespass was a seizure under the
Fourth Amendment).

n39 389 U.S. 347 (1967).

n40 Id. at 352.

n41 See id. at 361. (Harlan, J., concurring); See, e.g., California v.
Greenwood, 486 U.S. 35, 41 (1988); California v. Ciraolo, 476 U.S. 207, 211
(1986); Oliver v. United States, 466 U.S. 170, 177 (1984).

n42 See United States v. Dionisio, 410 U.S. 1, 14 (1973) (holding that voice
exemplar compelled by grand jury was not constitutionally protected because
appearance before a grand jury was not a seizure, but a historical
obligation, and a person has no reasonable expectation that others will not
know the sound of a voice that is exposed to the public at large); see also
United States v. Mara, 410 U.S. 19, 21 (1973) (stating that no showing of
reasonableness is required to compel handwriting because there is no
expectation of privacy in its physical characteristics).

n43 394 U.S. 721 (1969).

n44 Id. at 727.

n45 Id. at 728.

n46 Id. at 727. Fingerprinting is frequently cited as an analogous
technology that is widely accepted as unintrusive and highly accurate. Yet,
the accuracy of fingerprinting has increasingly come under attack. See Andy
Newman, Fingerprinting's Reliability Draws Growing Court Challenges, N.Y.
Times, Apr. 7, 2001, at A7.

n47 Cupp v. Murphy, 412 U.S. 291, 296 (1973) (taking fingernail scrapings
was reasonable where police had probable cause to believe the suspect
committed a murder, the scrapings would reveal the perpetrator, the suspect
was already voluntarily at the station house, and the evidence was subject
to destruction).

n48 Id. at 295 (quoting Terry v. Ohio, 392 U.S. 1, 24-25 (1968)).

n49 See United States v. Nicolosi, 885 F. Supp. 50, 51 (E.D.N.Y 1995).

n50 See id. at 55.

n51 See id. at 55-56.

n52 See In re Nontestimonial Identification Order Directed to R.H., 762 A.2d
1239, 1244 (Vt. 2000) [hereinafter Nontestimonial Identification].

n53 See id.

n54 See Schmerber v. California, 384 U.S. 757, 767 (1966).

n55 See Skinner v. Ry. Labor Exec. Ass'n, 489 U.S. 602, 616 (1989).

n56 Id. at 616-17.

n57 See Nontestimonial Identification, 762 A.2d at 1241 (citing State v.
Towne, 615 A.2d 484, 492 (1992)).

n58 Skinner, 489 U.S. at 617.

n59 470 U.S. 753 (1985).

n60 See id. at 765-66.

n61 The origin of the balancing test can be traced to Camara v. Municipal
Court, 387 U.S. 523 (1967). In that case, the Court held that a Department
of Public Health inspector could inspect an apartment for housing code
violations without a warrant. In carving out an exception to the warrant
requirement, the Court stated: "There can be no ready test for determining
reasonableness other than by balancing the need to search against the
invasion which the search entails." Id. at 536-37.

n62 Id. The Camara Court found the warrantless housing inspection reasonable
where the result could not be achieved any other way, and the neutral
inspection plan was "neither personal in nature nor aimed at the discovery
of evidence of crime . . . ." Id.

n63 See id.

n64 See, e.g., United States v. Biswell, 406 U.S. 311, 317 (1972) (upholding
warrantless entrance to gun store to inspect documents and gun licenses).

n65 See, e.g., Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 453
(1990) (discussing a sobriety checkpoint); Delaware v. Prouse, 440 U.S. 648,
653-54 (1979) (suggesting that roadblock for purpose of vehicle license and
registration check is constitutional if according to policy that eliminates
individual officer discretion); United States v. Martinez-Fuerte, 428 U.S.
543, 566-67 (1976) (involving a checkpoint to detect and deter flow of
illegal immigrants); see also United States v. Lopez, 328 F. Supp. 1077,
1092 (E.D.N.Y. 1971) (discussing airport passenger screening); see generally
Charles Whitebread & Christopher Slobogin, Criminal Procedure ¤ 13.06
(2000).

n66 See New Jersey v. T.L.O., 469 U.S. 325, 339-40 (1985).

n67 See Skinner, 489 U.S. at 620 (taking blood urine and breath tests of
employees for public safety purposes); Nat'l Treasury Employees Union v. Von
Raab, 489 U.S. 656, 668 (1989) (using urine testing of U.S. Customs
employees to deter drug use among officers); O'Connor v. Ortega, 480 U.S.
709, 719-20 (1987) (conducting workplace search for evidence of noncriminal
conduct).

n68 See Griffin v. Wisconsin, 483 U.S. 868, 872-73 (1987) (upholding
warrantless search of probationer's home by probation officer upon
reasonable grounds to believe probation violated).

n69 Nat'l Treasury Employees Union, 489 U.S. at 665 ("Our cases establish
that where a Fourth Amendment intrusion serves special governmental needs,
beyond the normal need for law enforcement, it is necessary to balance the
individual's privacy expectations against the Government's interests to
determine whether it is impractical to require a warrant. . . .").

The term "special needs" is most often attributed to Justice Blackmun's
concurring opinion in T.L.O. where he stated: "Only in those exceptional
circumstances in which special needs, beyond the normal need for law
enforcement, make the warrant and probable cause requirement impracticable,
is a court entitled to substitute its balancing interests [for the warrant
requirement]." T.L.O., 469 U.S. at 352 (Blackmun, J. concurring).

n70 489 U.S. 602 (1989).

n71 See id. at 613.

n72 See id. at 620-21.

n73 See id. at 621-24.

n74 Id. at 624.

n75 489 U.S. 656 (1989).

n76 See id. at 665-72.

n77 See id. at 671, 672, 679.

n78 See id. at 679.

n79 The dissent in Dial v. Vaughn, 733 A.2d 1, 11 (Pa. Commw. Ct. 1999),
notes that "once scientists are able to map human DNA, DNA samples will
reveal everything about a person, including race, appearance, and
predisposition to disease . . . . The majority does not consider this
potential expansive intrusion into a prisoner's privacy from DNA testing,
but I cannot ignore it."

n80 See Skinner, 489 U.S. at 633.

n81 384 U.S. 757 (1966).

n82 See, e.g., People v. Wealer, 636 N.E.2d 1129, 1136 (Ill. App. Ct.),
appeal denied, 642 N.E.2d 1299 (Ill. 1994) (observing that physical
intrusion of blood test to be used for DNA profiling is "relatively slight
and poses no threat to the health or safety of the individual tested").

n83 See Schmerber, 384 U.S. at 772.

n84 See id. at 771 n.13 (citing Breithaupt v. Abraham, 352 U.S. 432, 436
(1957)).

n85 Id. at 771.

n86 Id.

n87 470 U.S. 753 (1985).

n88 Id. at 762; see Juvenile Dep't of Multnomah County v. Orozco, 878 P.2d
432, 436 (Or. Ct. App. 1994); see also In re Appeal in Maricopa County
Juvenile Action No. JV 96-0020, 930 P.2d 496, 500-01 (Ariz. App. 1996).

n89 See Shelton v. Gudmanson, 934 F. Supp. 1048, 1050-51 (W.D. Wis. 1996)
(dicta suggesting that a cheek swab could be held to be more like
fingerprints, and may not even constitute a search under the Fourth
Amendment).

n90 Orozco, 878 P.2d at 435 (quoting Davis, 394 U.S. at 727); see also Rise
v. Oregon, 59 F.3d 1556, 1562 (9th Cir. 1995) (noting that the information
derived is substantially the same as that derived from fingerprinting--"a
unique identifying marker"); Jones v. Murray, 962 F.2d 302, 307 (4th Cir.
1992).

n91 See, e.g., Roland A.H. von Oorschot & M.K. Jones, DNA Fingerprints from
Fingerprints, 387 Nature 767 (1997) (describing techniques for obtaining DNA
by amplifying oil in skin deposited by making a fingerprint). In some
instances, the DNA analysis will not require any additional intrusion, such
as when part of a specimen collected for one purpose, for example, newborn
screening, is simply used for a law enforcement DNA data bank.

n92 636 N.E.2d 1129, (Ill. Ct. App.), appeal denied, 642 N.E.2d 1299 (Ill.
1994).

n93 See id. at 1137.

n94 See Schmerber, 384 U.S. at 770-771. In Schmerber, the Court found the
blood extraction reasonable because police had probable cause to believe the
arrestee committed a crime, and the blood was evidence of that crime. The
Court noted that "the interests in human dignity and privacy which the
Fourth Amendment protects forbid any such intrusions on the mere chance that
desired evidence might be obtained." Id. at 760-70. In Winston v. Lee, 470
U.S. 753, 760-61 (1985), the Court recognized that probable cause was
required "where intrusions into the human body are concerned," which
implicate "deeprooted expectations of privacy."

n95 See, e.g., Rise, 59 F.3d at 1562 (describing the government interest as
"the public's incontestable interest in preventing recidivism and
identifying and prosecuting murderers and sexual offenders"); see also Roe
v. Marcotte, 193 F.3d 72, 79 (2d Cir. 1999); State v. Olivas, 856 P.2d 1076,
1085 (Wash. 1993).

n96 See, e.g., Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1997).

n97 Jones, 962 F.2d at 307.

n98 856 P.2d 1076, 1085-86 (Wash. 1993). The Olivas court relied on the
"special needs" analysis in Jones v. Murray, 962 F.2d 302, although it noted
that the Jones court declined to resolve its case using this analysis,
choosing instead to focus on the diminished privacy rights of convicted
offenders.

n99 Olivas, 856 P.2d at 1085.

n100 Dial, 733 A.2d at 3.

n101 See id. at 6-7. Although the court cites Bell v. Wolfish, 441 U.S. 520
(1979), (rather than the Turner test), it makes no attempt to justify the
test based on any penological objective.

n102 Shelton v. Gudmanson, 934 F. Supp. 1048, 1050 (W.D. Wis. 1996)
(construing Wisconsin's DNA testing statute) (emphasis added).

n103 193 F.3d 72 (2d Cir. 1999).

n104 See id. at 78.

n105 See id. at 79.

n106 See supra, Part I.B.1.a.

n107 See Smith v. United States, 324 F.2d 879, 882 (D.C. Cir. 1963) ("it is
elementary that a person in lawful custody may be required to submit to . .
. fingerprinting . . . as part of the routine identification process."); see
also Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965) ("Taking
fingerprints [prior to bail] is universally standard procedure, and no
violation of constitutional rights").

n108 962 F.2d 302 (4th Cir.), cert. denied, 506 U.S. 977 (1992).

n109 See id. at 306.

n110 Id. at 306-07.

n111 59 F.3d 1556 (9th Cir. 1995), cert. denied, 517 U.S. 1160 (1996)
(noting that once arrested, individuals have a lesser expectation of privacy
in their identity, and thus in their fingerprints as a record of their
identity, whether or not the criminal investigation involves fingerprint
evidence).

n112 Id. at 1560.

n113 Id.

n114 709 N.E.2d 1085 (Mass. 1999), cert. denied, 528 U.S. 1073 (2000).

n115 See id. at 1092.

n116 See id.; see also Boling, 101 F.3d at 1340 (holding that information
derived from DNA blood sample is substantially the same as the identifying
information derived from fingerprinting); Johnson v. Virginia, 529 S.E.2d
769, 779 (Va. 2000) (following Jones v. Murray, holding in the case of
minimal privacy afforded convicted felons, minimal intrusion of DNA blood
test outweighed by Virginia's interest in improved law enforcement); Shelton
v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis. 1996) (using a cheek swab to
obtain DNA could be viewed as part of identification process rather than as
search).

n117 U.S. Const. amend. XIV.

n118 See, e.g., Marcotte, 193 F.3d at 82; Boling, 101 F.3d at 1341.

n119 See Marcotte, 193 F.3d at 72 (citing Artway v. Attorney General, 81
F.3d 1235, 1267 (3d Cir. 1996) (holding that sex offenders are not a suspect
class for purposes of equal protection analysis)).

n120 See Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 81 (1988).

n121 See Boling, 101 F.3d at 1341; see also Rise, 59 F.3d at 1561 (holding
statute's requirement to obtain DNA samples from inmates convicted of murder
of sex offenses bore rational relationship to the public interest in
identifying and prosecuting murders and sex offenders).

n122 U.S. Const. amend. VIII.

n123 Whitley v. Albers, 475 U.S. 312, 319 (1986).

n124 Estelle v. Gamble, 429 U.S. 97, 106 (1976).

n125 Hudson v. McMillian, 503 U.S. 1,7 (1992).

n126 Farmer v. Brennan, 511 U.S. 825, 834 (1994).

n127 See Cooper v. Gammon, 943 S.W.2d 699, 707 (Mo. App. 1997).

n128 Kruger v. Erickson, 875 F. Supp. 583, 588 (D. Minn. 1995), aff'd on
other grounds, 77 F.3d 1071 (8th Cir. 1996) (finding unconsented drawing of
prisoner's blood by trained technician in accordance with medically
acceptable procedures did not amount to the wanton infliction of pain under
the Eighth Amendment); Ryncarz v. Eikenberry, 824 F. Supp. 1493, 1501 (E.D.
Wash. 1993) (concluding that inmate's claims that he was placed in full
physical restraints prior to blood draw, officials used unsanitized needle,
and that his blood vessels ruptured, resulting in internal scars,
hemorrhaging, and impaired movement of his left arm, were not sufficiently
harmful to amount to deliberate indifference to serious medical needs under
the Eighth Amendment).

n129 See Sanders v. Coman, 864 F. Supp. 496, 500 (E.D.N.C. 1994) (holding
that DNA procedure is a lawful administrative order, and may be enforced the
same way as other lawful orders of prison officials, according to state
statute that expressly permits the use of force to ensure compliance); see
also Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993).

n130 U.S. Const. art. I, ¤ 10., cl. 1 ("No state shall . . . pass any . . .
ex post facto Law").

n131 Collins v. Youngblood, 497 U.S. 37, 43 (1990).

n132 See, e.g., Rise, 59 F.3d at 1562 (declaring Ex Post Facto Clause not
violated where purpose of data bank statute was to assist in identification,
arrest, and prosecution of criminals, rather than to punish offenders)
(quoting United States v. Huss, 7 F.3d 1444, 1447 (9th Cir. 1993)).

n133 See Ewell v. Murray, 11 F.3d 482, 487 (4th Cir. 1993) (holding prison
regulation allowing loss of good-time credit and possible placement in
isolation for up to fifteen days for refusal to provide DNA sample was a
reasonable prison regulation and did not violate ex post facto clause).

n134 See id.

n135 Id.

n136 962 F.2d 302 (4th Cir. 1992).

n137 Id. at 310.

n138 U.S. Const. amend. V. The Fifth Amendment to the United States
Constitution provides that no person "shall be compelled in any criminal
case to be a witness against himself . . . ." See also Schmerber v.
California, 384 U.S. 757, 760-61 (1966).

n139 Schmerber, 384 U.S. at 761.

n140 See Dionisio, 410 U.S. at 11 (citing Boyd v. United States, 116 U.S.
616, 634-35 (1886)) (stating that government could not compel accused to
produce incriminating invoices).

n141 Id. at 15.

n142 United States v. Wade, 388 U.S. 218, 223 (1967) (recognizing that
federal and state courts have held the Fifth Amendment "offers no protection
against compulsion to submit to fingerprinting, photography, or
measurements. . . to appear in court, to stand, to assume a stance, to walk,
or to make a particular gesture").

n143 See Schmerber, 384 U.S. at 761.

n144 See Lucero v. Gunter, 17 F.3d 1347, 1350 (10th Cir. 1994) (finding
urine is non-testimonial in nature; thus prisoner's compelled urine for drug
test raised no Fifth Amendment challenge).

n145 See Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998); Boling v. Romer,
101 F.3d 1336 (10th Cir. 1996); Cooper v. Gannon, 943 S.W.2d 699 (Mo. Ct.
App. 1997); Johnson v. Virginia, 529 S.E.2d 769 (Va. 2000).

n146 U.S. Const. amend. XIV.

n147 See Johnson, 529 S.E.2d at 780.

n148 See Rise, 59 F.3d at 1562-63.

n149 See Boling, 101 F.3d at 1340-41.

n150 See, e.g., Bowers v. Hardwick, 478 U.S. 186, 191 (1986).

n151 Rochin v. California, 342 U.S. 165, 169 (1952) (quoting Malinski v. New
York, 324 U.S. 401, 416-17 (1945)).

n152 Palko v. Connecticut, 302 U.S. 319, 325 (1937).

n153 342 U.S. at 165.

n154 Id. at 166.

n155 Id. at 172.

n156 Id. at 173 (quoting Brown v. Mississippi, 297 U.S. 278, 285-86 (1936)).

n157 Id. at 167.

n158 See, e.g., Kruger, 875 F. Supp. at 587.

n159 See Dial v. Vaughn, 733 A.2d 1 (Pa. 1999).

n160 See id. at 4.

n161 Id.

n162 Id.

n163 Murnmeigh v. Gainer, 685 N.E.2d 1357, 1364-67 (Ill. 1997).

n164 Id.

n165 532 U.S. 32 (2000). Although Edmond is a narcotics checkpoint case, the
majority of databank cases cite to the early checkpoint cases as the
authority for the balancing test that is applied to suspicionless searches.

n166 Id. at 36.

n167 Id. at 40.

n168 Id. at 37.

n169 Id. at 38.

n170 Edmond, 532 U.S. at 38-39.

n171 Id. at 44 (quoting Prouse, 440 U.S. at 649 n.18).

n172 Id. at 46.

n173 Id. at 48.

n174 121 S. Ct. 1281 (2001).

n175 See id. at 1284. For purposes of its Fourth Amendment analysis, the
Court assumed the patients had not consented to the drug testing.

n176 See id. at 1285.

n177 See id. at 1286.

n178 Id. at 1291 (emphasis in original).

n179 Ferguson, 121 S. Ct. at 1292.

n180 See id.

n181 The Louisiana statute provides: "A person who is arrested for a felony
sex offense . . . shall have a DNA sample drawn or taken at the same time he
is fingerprinted pursuant to the booking procedure." La. Rev. Ann. Stat. ¤
15:609(A) (West 2000).

n182 See infra, Appendix, Tbl. 1.

n183 The Supreme Court's most recent decision on the expectation of privacy
for Fourth Amendment purposes is United States v. Kyllo, 121 S. Ct. 2038
(2001). The Court held, five-to-four, that police officers violated the
Fourth Amendment when they used a thermal imaging scanner outside of a home
in an effort to detect the presence of high intensity lights used to grow
marijuana indoors.

n184 The F.B.I. is opposed to the destruction of stored DNA samples. Reasons
for opposition include: (1) to maintain uniformity among the states because
virtually all states require sample retention; (2) to avoid the prohibitive
cost of re-typing convicted offenders once they have been released from
prison, should it be necessary; (3) to assure data base consistency among
the states in light of technological advances; (4) to allow re-checking a
hit against the sample to assure a sample has not been mistyped, thus
avoiding the release of a person's name to law enforcement personnel by
mistake; and (5) that it is safe to retain samples because no abuse of
stored samples has been reported in over ten years of databasing. Dr. Tom
Callaghan, Federal Bureau of Investigation, Program Manager, Federal
Convicted Offender Database, Statement before the National Commission on the
Future of DNA Evidence (Sep. 26, 1999), available at
http://www.ojp.usdoj.gov/nij/dna (last visited April 8, 2001).

n185 See, e.g., Tex. Gov't Code Ann. ¤ 411.147(e) (Vernon 2000).

n186 See, e.g., La. Rev. Stat. Ann. ¤ 15:611 (West 2000).

n187 See Ala. Code ¤ 36-18-20 (b) (2000); Ala. Code ¤ ¤ 36-38-24 (a) and
(c)(2000).

n188 See Ind. Code. ¤ 10-1-9-13 (a)(3)(B) (2000).

n189 Federal law requires the informed consent of persons prior to their
participation in medical research. Serious issues pertaining to informed
consent are raised by some state DNA data bank statutes, but that discussion
is beyond the scope of this article.

n190 See Skinner, 489 U.S. at 616-17 ("The ensuing chemical analysis of the
sample to obtain physiological data is a further invasion of the tested
employee's privacy interests . . . . It is not disputed . . . 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.").

n191 See generally Harold J. Kent, Of Diaries and Data Banks: Use
Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49 (1995).

n192 The power of DNA technology to exonerate previously convicted
individuals has led to legislation authorizing the DNA testing of evidence
from prior crimes to determine whether any convictions were in error. See,
e.g., 725 Ill. Comp. Stat. ¤ 5/116-3 (2000); Minn. Stat. ¤ 590.01 (2000);
N.Y. Crim. Proc. Law ¤ 440.30 (2001).

n193 Recommendation of the National Commission on the Future of DNA Evidence
to the Attorney General Regarding Arrestee DNA Sample Collection (2000),
available at http://www.ojp.usdoj.gov/nij/dna/arrestrc.html (last visited
April 8, 2001).

n194 As of October 13, 1998, CODIS had generated more than 400 "cold hits."
Press Release, U.S. Dep't of Justice, FBI, Oct. 13, 1998.

n195 According to Paul Ferrera, Director of the Virginia Division of
Forensic Science, 85% of hits would have been missed if the data bank were
limited only to violent offenders. A Florida study reportedly showed that
52% of Florida offenders linked to sexual assaults and homicides by DNA data
base matches had prior burglary convictions, a non-violent offense.
Schellberg, supra note 26, at 23.

n196 Paul Giannelli et al., Genetic Information, Law, Legal Issues in Law
Enforcement DNA Databases, in 1 Encyclopedia Of Ethical, Legal, And Policy
Issues In Biotechnology 413 (Thomas H. Murray & Maxwell J. Mehlman eds.
2000); Eric T. Juengst, I-DNA-Fication, Personal Privacy, and Social
Justice, 75 Chi.-Kent L. Rev. 61 (1999); Testimony of Barry Steinhardt,
Assoc. Dir., American Civil Liberties Union, before House Judiciary
Committee Subcommittee on Crime, Mar. 23, 2000 [hereinafter Steinhardt
Testimony].

n197 Giannelli et al., supra note 196; Paul A. Lombardo, Genetic
Confidentiality: What's the Big Secret?, 3 U. Chi. Law Sch. Roundtable 589
(1996); Steinhardt Testimony, supra note 196.

n198 See Michelle Hibbert, DNA Databanks: Law Enforcement's Greatest
Surveillance Tool?, 34 Wake Forest L. Rev. 767, 817-21 (1999); Juengst,
supra note 196; Steinhardt Testimony, supra note 196.

n199 In the last few years, both the forensic testing community in the
United States and commercial vendors have agreed on the use of a
standardized set of thirteen core short tandem repeat ("STR") loci for
forensic cases. STR markers are tandemly repeated sequences of two to six
base pair units, and alleles are typically 100-400 base pairs in size. These
STR loci typically contain between seven and fifteen alleles. Of the
thirteen core STRs in use, twelve are located in non-coding regions. John M.
Butler, Forensic Typing Biology and Technology Behind STR Markers 322
(2001). Thus, the issue of non-coding regions is largely addressed by
current technology, but the laws do not require the use of non-coding
regions and new technology could use coding regions.

n200 In his commentary on our article, David H. Kaye, Two Fallacies About
DNA Data Banks for Law Enforcement, 67 Brook. L. Rev. 179 (2001), Professor
Kaye criticizes our proposal to use only non-coding regions of the genome
for analysis. He agrees with our general concern that only those portions of
the genome that indicate future health or other features of social concern
should be analyzed. Yet, he cannot resist quibbling with our definition of
non-coding regions and with our underlying rationale. He offers no evidence
of the need to use coding regions and fails to give any weight to public
concerns about possible uses of the test results beyond law enforcement.

Our proposal to use only non-coding regions of the genome for analysis takes
into account the public's concerns about possible discriminatory use of
genetic information or improper behavioral genetic research. Professor Kaye
would require us to cite examples of genetic discrimination or behavioral
genetic research run amok. But he misses the point. In determining social
policy, it is important that the public accept the government action. The
public is extremely concerned about possible misuse of genetic information.
That is why many at-risk individuals decline genetic testing and why,
despite a paucity of incidents of discrimination, most states have enacted
laws prohibiting genetic discrimination in employment and health insurance.
The current STR loci do not use coding regions (with only one exception, the
CSF1PO marker). Butler, supra note 199. It is unnecessary to use non-coding
regions now (no matter how defined), and it is unlikely that it will be
necessary to use noncoding regions in the future. We believe that the
principle of using the least intrusive method of analysis consistent with
the needs of law enforcement is widely supported by the law enforcement
community, see infra, note 209 and accompanying text, as well as the public.
Our proposal seeks to prevent the future use of coding regions. We believe
that using non-coding regions increases the social acceptability of a DNA
data bank of any scope. Professor Kaye actually weakens his case for broader
data banks by choosing to contest this issue. Cf. Amar, supra note 13, at 69
(arguing for national data bank and using only "junk DNA" for analysis).

n201 962 F.2d 302 (4th Cir. 1992).

n202 Id. at 315 (Murnaghan, J., concurring in part and dissenting in part).

n203 856 P.2d 1076 (Wash. 1993).

n204 Id. at 1094 (Utter, J., concurring). The proposal for a nationwide
identification data bank would not be without precedent. For example, in
1943, Senator William Langer of North Dakota introduced legislation to
mandate a nationwide fingerprinting system. S. 1191, 78th Cong., (1943)
(proposing a bill to require certain persons within the United States to
carry identification cards and be fingerprinted for other purposes). As with
other similar bills, this legislation was not acted on. It is not clear
whether there would be any political support today for a mandatory,
nationwide DNA law enforcement data bank. It is possible that the public
would support any law expanding the testing of offenders or even arrestees,
but resist including all of the population.

n205 Jean E. McEwen, DNA Data Banks, in Genetic Secrets: Protecting Privacy
and Confidentiality in the Genetic Era 236 (Mark A. Rothstein ed. 1997).

n206 See National Commission on the Future of DNA Evidence, The Future of
Forensic DNA Testing: Predictions of the Research and Development Working
Group 1-3 (2000) [hereinafter The Future of Forensice DNA Testing].

n207 See id. See also supra note 199.

n208 The human genome is comprised of exons (1.1%), introns (24%), and
intergenic DNA (75%). J. Craig Venter et al., The Sequence of the Human
Genome, 291 Sci. 1304, 1305 (2001). Exons are the regions of genes that code
for the production of proteins. Therefore, the exons are the "coding"
regions that contain information about current or future gene products that
may be expressed phenotypically. Introns are the non-coding regions that
separate one exon of the gene from another. Intergenic DNA is noncoding and
comprises a majority of the genome; although sometimes referred to as "junk
DNA," additional research is likely to reveal both the functional and
evolutionary significance of these regions.

n209 See supra note 200.

n210 Randall S. Murch & Bruce Bodowle, Are Developments in Forensic
Applications of DNA Technology Consistent with Privacy Protections?, in
Genetic Secrets, supra note 205, at 224 (Randall S. Murch, Ph.D., is Chief,
Scientific Analysis Section, FBI; Bruce Budowle, Ph.D., is Chief, Forensic
Science Research Unit, FBI).

n211 See generally Ad Hoc Committee on Individual Identification by DNA
Analysis, Individual Identification by DNA Analysis: Points to Consider, 46
Am. J. Human Genetics 631 (1991) (encouraging laboratory quality). Two
FBI-appointed groups, the Technical Working Group on DNA Analysis Methods
("TWGDAM") and the DNA Advisory Board ("DAB") also encourage laboratories to
seek accreditation.

n212 See The Future of Forensic DNA Testing, supra note 206, at 56-68; David
H. Kaye & George F. Sensabaugh, Jr., Reference Guide on DNA Evidence, in
Federal Judicial Center, Reference Manual on Scientific Evidence 516-48 (2d
ed. 2000).

n213 See The Future of Forensic DNA Testing, supra note 206, at 36.

n214 Kimmelman, supra note 14, at 211.

n215 McEwen, supra note 205, at 238 (citing DNA Technology in Forensic
Science (1995)).

n216 Only four states (Indiana, Ind. Code ¤ 10-1-9-18 (Burns 2000); New
York, N.Y. Exec. ¤ 995-d (McKinney Supp. 2001); Rhode Island, R.I. Gen. Laws
¤ 12-1.5-10(2)(d) (2000); and Wyoming, Wyo. Stat. Ann. ¤ 7-19-404(c) (Lexis
2001)) currently prohibit forensic DNA samples to be used to derive health
information. Ohio allows its data bank to be used in proceedings
establishing paternity or maternity. Ohio Rev. Code Ann. ¤ 109.573 (1997).
New Jersey and Maryland allow access to the data bank to determine parentage
if there is a court order. Md. Code Ann., art. 88B, ¤ 12A(K)(iv); Md. Code
Ann. Family Law ¤ 5-1029 (1999); N.J. Stat. Ann. ¤ ¤ 9:17-52, 53:1-20.21
(2000). See Lori Andrews & Dorothy Nelkin, Body Bazaar: The Market for Human
Tissue In The Biotechnology Age 121, 123 (2001). Twenty states permit the
use of samples for research. Kimmelman, supra note 14, at 212.

n217 See 28 C.F.R. Part 46 (2000) (Department of Justice regulations
applicable to research, which would apply to research conducted by a
federallyfunded state crime laboratory or its designee).

n218 Professor Kaye asserts that requiring a national data base will benefit
minority suspects because inmate-based data banks are skewed on the basis of
race and ethnicity to reflect the higher minority inmate population. He
further suggests that a national data base will eliminate the need for
police to round up large numbers of minority men (and women) to search for
suspects. Kaye, supra note 200, at 194-98.

It is difficult to embrace Professor Kaye's unsupported speculation that
members of minority groups, justifiably distrustful of both the law
enforcement and biomedical research communities, would consider the mass
collection, analysis, and retention of their DNA as a way of protecting
their civil rights. In our view, dragnet searches of minority populations to
generate suspects are unconstitutional under Davis v. Mississippi, 394 U.S.
721 (1969), and should be prohibited. Without the outrage of such searches,
Professor Kaye's "equality" argument in favor of a national data bank
collapses. It is not necessary to know the identity of the perpetrator to
exonerate an innocent person charged with the crime. Indeed, it is the lack
of a match between crime scene DNA and the individual charged with the
crime, not that someone else's DNA matched the evidence, that has led to the
release of wrongfully convicted individuals.

Professor Kaye has a very powerful, simple argument that he comes close to
obfuscating: The intrusions on civil liberties that would occur with a more
comprehensive or a national forensic DNA data base are outweighed by the
public interest in law enforcement. Kaye, supra note 200, at 191. It is an
argument that will have wide appeal. We applaud the goal; we just think that
such a data base raises grave constitutional issues and, even if
constitutional, the civil liberties cost is too high.

n219 42 U.S.C. ¤ 14133(c) (1999).

n220 See infra Appendix, Tbl. 1.

n221 Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv.
L. Rev. 1, 26 (1956) (quoted in Miranda v. Arizona, 384 U.S. 436, 480
(1966)).

n222 429 U.S. 589 (1977).

n223 Id. at 606-07 (Brennan, J., concurring).

n224 277 U.S. 438 (1928).

n225 See Katz v. United States, 389 U.S. 347 (1967).

n226 Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting).

n227 "One of Brandeis's working folders for Olmstead contains a 1928
clipping reporting on the development of something called television.
Brandeis was a great believer in progress--but not all progress was good."
Philippa Strum, Louis D. Brandeis: Justice for the People 325
(1984)(footnote omitted).

n228 277 U.S. at 478 (Brandeis, J., dissenting).

n229 Id. at 479 (Brandeis, J., dissenting) (footnote omitted). In his
dissent in Skinner v. Railway Labor Executives' Association, 489 U.S. 602
(1989), Justice Marshall expressed a similar concern. "History teaches that
grave threats to liberty often come in times of urgency, when Constitutional
rights seem too extravagant to endure . . . .When we allow fundamental
freedoms to be sacrificed in the name of expediency, we invariably come to
regret it." Id. at 634 (Marshall, J., dissenting).