Hot Off the Presses: On the 'Considered Analysis' of Collecting DNA Before Conviction

The final version of On the 'Considered Analysis' of Collecting DNA Before Conviction, mentioned three months ago, is now published in UCLA Law Review Discourse, Vol. 60, 2013, pp. 104-126, and is available on the review's website or from SSRN.

Abstract: For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below." The full Court then granted a writ of certiorari. This essay briefly examines the opinions listed by the Chief Justice and finds their analysis incomplete. I outline the Fourth Amendment questions that a fully considered analysis must answer, identify questionable dicta on the definition of "searches" and "seizures" in the opinions, describe a fundamental disagreement over the analytical framework for evaluating the reasonable warrantless searches or seizures, and criticize a creative compromise in one of the opinions that would allow sample collection without DNA testing before conviction. I conclude that in King, the Supreme Court not only must assess the actual interests implicated by pre-conviction collection and profiling of DNA but also should articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general.