The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard

Note: This posting updates previous ones. It is current as of July 17, 2014.

Seventeen years ago, Louisiana adopted a law mandating that "[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure." As of mid-2012, 28 states and the federal government had laws providing for DNA sampling before any conviction is obtained. Most other countries with DNA databases also collect samples on arrest.

The DNA-before-conviction (DNA-BC) laws in the U.S. had a placid childhood, with surprisingly few challenges to their constitutionality. In contrast to their older brother, laws mandating DNA collection after conviction (DNA-AC), which were upheld in scores of cases, DNA-BC laws provoked conflicting constitutional opinions.

In June 2013, after years of declining to review opinions on the constitutionality of DNA databases, the Supreme Court stepped in to decide whether the Maryland Court of Appeal erred in holding that collecting DNA samples as part of the booking process violated the Fourth Amendment.A sharply dividing Court held that Maryland's system of DNA sampling, testing, and database searching was not an unreasonable search under the Fourth Amendment.

This posting presents a scoreboard on the litigation and scholarly commentary to date. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones on DNA-AC. Authors who have contended that these databases are unconstitutional would reach the same conclusion for a database that includes arrestees, but the lower courts have resoundingly rejected their analyses. Therefore, little would be gained by keeping track of the many articles on convicted-offender databases.

The tables indicate that before the Supreme Court's opinion in Maryland v. King, there was no clear consensus among lower courts on the constitutionality of taking DNA samples during a custodial arrest (or at another point before conviction) with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database).

The Supreme Court's decision in King has not ended all constitutional challenges to DNA database laws. The lingering litigation concerns arguable distinctions between Maryland's statute and those of other jurisdictions and the effect of state constitutional provisions.

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Table 1. Case law

Appellate: Supreme Court of the United States

• Maryland v. King, 133 S. Ct. 1958 (2013) (state law requiring testing after arraignment constitutional under totality-of-the-circumstances balancing test)

Appellate: State Supreme Courts (1.5-2.5)

• Mario W. v. Kaipio, Commissioner, 281 P.3d 476 (Ariz. 2012) (state arrestee law for juveniles constitutional insofar as it allows sampling as a booking procedure, but pre-conviction analysis of the sample is unconstitutional under a totality-of-the-circumstances standard and an analogy to searching containers)
• King v. State, 42 A.3d 549 (Md. 2012) (state law requiring testing after arraignment unconstitutional "as applied" under a totality-of-the-circumstances balancing test), rev'd sub nom. Maryland v. King, 133 S. Ct. 1958 (2013)
• Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state law constitutional under unspecified balancing test and analogy to fingerprinting as a booking procedure)
• State v. Medina, 2014 VT 69 (state law violates state constitution under a restricted version of the special-needs balancing test)
• Related case: State v. Franklin, 76 So.3d 423 (La. 2011) (no search warrant required to take a DNA sample from a murder defendant for use in the murder investigation because he had to submit a sample "as a routine incident of booking" anyway)

Appellate: State Intermediate Courts (opinions not reviewed by higher courts) (2-2)

• People v. Buza, 197 Cal.App.4th 1424 (Cal. Ct. App. 2011) (state law unconstitutional under balancing tests), rev. granted, 262 P.3d 854 (Cal. 2011), vacated and remanded for reconsideration in light of Maryland v. King, 302 P.3d 1051 (Cal. 2013)
• People v. Lowe, 165 Cal.Rptr.3d 107 (Cal. Ct. App. 2013) (state law constitutional under "totality" balancing test), rev. granted, 320 P.3d 799 (Cal. 2014)
• State v. Biery, 318 P.3d 1020, 2014 WL 802100 (Kan. Ct. App. 2014) (unpublished) (state law constitutional under Fourth Amendment as construed in Maryland v. King and under state constitution)
• In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law unconstitutional as per se unreasonable without probable cause and a warrant)

Appellate: Federal Courts (3-0)

• United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc) (federal arrestee law constitutional under "totality of circumstances" balancing test)
• Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (state arrestee law constitutional under totality-of-the-circumstances balancing test), vacated by grant of rehearing en banc, 686 F. 3d 1121 (9th Cir. 2012), aff'd as to denial of preliminary injunction, 745 F. 3d 1269 (9th Cir. 2014) (en banc)
• United States v. Pool, 621 F.3d 1213 (9th Cir. 2010) (federal arrestee law constitutional under "totality of circumstances" balancing test), vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
• Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)

Trial Courts: Federal (not reviewed by higher courts) (4-1)

• United States v. Thomas, No. 10-CR-6172 CJS, 2011 WL 1627321 (W.D.N.Y. Apr. 27, 2011) (federal arrestee law constitutional under "special needs" balancing test), dismissed, No. 11-1742 (2d Cir. Sept. 20, 2011), ECF No. 43
• United States v. Demasi, Crim. No. 12–197, 2013 WL 24818 (W.D.Pa. Jan. 2, 2013) (federal  law constitutional applying Mitchell)
• United States v. Robinette, No. 13–CR–0003 AWI BAM, 2013 WL 211112 (E.D.Cal. Jan. 18, 2013) (federal law constitutional at least until the Supreme Court rules in King v. Maryland)
• Amended Order Denying the Government's Motion to Compel DNA Samples, United States v. Frank, No. CR-092075-EFS-1(E.D. Wash. Mar. 10, 2010), available at http://www.dnaresource.com/documents/USvFrank.pdf (applying totality balancing to a limited list of interests to find compulsory collection before conviction unconstitutional)
• United States v. Fricosu, No. 10-cr-00509-REB-01 (D. Colo. Feb. 22, 2012) (federal law constitutional under totality standard), available at http://www.denverda.org/DNA_Documents/Arrestee_Database/Fricosu.pdf.
• Related case: United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 (D. Neb. 2005) (forcibly taking a buccal swab from an arrestee violates Fourth Amendment in the absence of a statute providing for a uniform and limited system of sampling)

Trial Courts: Federal (reviewed by higher courts) (2-1)

• United States v. Mitchell, 681 F.Supp.2d 597 (W.D.Pa. 2009) (federal law held unconstitutional), rev'd, 652 F.3d 387 (3d Cir. 2011) (en banc)
• United States v. Pool, 645 F.Supp.2d 903 (E.D.Cal. 2009) (federal arrestee law constitutional under "totality of circumstances" balancing test), aff'd, 621 F.3d 1213 (9th Cir. 2010), affirming opinion vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
• Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009) (denying a preliminary injunction against the enforcement of California's arrestee sampling law in large part because the balance of interests establishes that the requirement is constitutional), aff'd sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir.), reh'g en banc granted, 686 F.3d 1121 (9th Cir. 2012), aff'd, 745 F. 3d 1269 (9th Cir. 2014) (en banc)

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Table 2. Law Review Articles and Notes
Faculty and Professional Authors

• D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol'y 455-508 (2001) (a statute with sufficient protections to confine the government to identifying information is constitutional under the special needs exception)
• Tracey Maclin, Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but stating that it should reject the practice as per se unreasonable)
• D. H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J.L. Med. & Ethics 188 (2006) (proposing a "biometric information exception" to the warrant requirement)
• Brian Gallini, Step Out of the Car: License, Registration, and DNA Please, 62 Ark. L. Rev. 475 (2009) (Arkansas law unconstitutional because it does not require a judicial finding of probable cause arrest, contains inadequate safeguards to protect the samples and records, and because it does not fall within an established exception to the warrant requirement)
• Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N. Car. L. Rev. Addendum 157 (2012) (pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause and DNA samples should be destroyed)
• Michael J. Crook, Sacrificing Liberty for Security: North Carolina's Unconstitutional Search and Seizure of Arrestee DNA, 34 Campbell L. Rev. 473 (2012)
• David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (a formal finding of probable cause for an unrelated arrest is not constitutionally required)
• David H. Kaye, On the "Considered Analysis" of DNA Collection Before Conviction, 60 UCLA L. Rev. Discourse 104 (2013)
• David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L.  1095 (2013)
• Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 54 Jurimetrics J. 43 (2013)
• Elizabeth E. Joh, Maryland v. King: Policing and Genetic Privacy, 11 Ohio St. J. Crim. L. 281 (2013)
• Andrea Roth, Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement, 11 Ohio St. J. Crim. L. 295 (2013)
• Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013)
• David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013)
• Jessica D. Gabel, Indecent Exposure: Genes Are More than a Brand Name Label in the DNA Database Debate, 42 U. Balt. L. Rev. 561 (2013)
• Rana Santos, Why DNA Databasing Is Good for Maryland: A DNA Analyst's Perspective, 42 U. Balt. L. Rev. 591 (2013)
• Tracey Maclin, Maryland v. King: Terry v. Ohio Redux, 2013 Sup. Ct. Rev. 359
• David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology (forthcoming Aug. 2014), draft available at http://ssrn.com/abstract=2376467 
• Related article: Robert Molko, The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010, 37 W. St. U. L. Rev. 183 (2010) (reaching no conclusions)

Student

• Martha L. Lawson, Note, Personal Does Not Always Equal "Private": The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government's interest in mandatory testing of all those arrested outweighs individuals' privacy interests)
• Reneé A. Germaine, Comment, "You Have the Right to Remain Silent. . . You Have No Right to Your DNA" Louisiana's DNA Detection of Sexual and Violent Offender's Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
• Kimberly A. Polanco, Note, Constitutional Law-The Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
• Robert Berlet, Comment, A Step Too Far: Due Process and DNA Collection in California after Proposition 69, 40 U.C. Davis L. Rev. 1481 (2007) (with certain modifications, arrestee DNA sampling as provided for under California law would be constitutional)
• John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests) 
• John Maddux, Comment, Arresting Development: A Call for North Carolina to Expand Its Forensic Database by Collecting DNA fromFelony Arrestees, 32 Campbell L. Rev. 103 (2009)
• Corey Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010)
• Ashley Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011)
• Lauren N. Hobson, Note, North Carolina's Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010, 89 N.C. L. Rev. 1309 (2011) (unconstitutional because no existing exception to the Warrant Clause applies)
• Kelly Ferrell, Comment, Twenty-first Century Surveillance: DNA “Data-mining” and the Erosion of the Fourth Amendment, 51 Hous. L. Rev. 229 (2013)
• Alex Sugzda, Note, You're under Arrest-say Ah: Suggestions for Legislatures Drafting Statutes Allowing DNA Extraction from Arrestees, 70 Wash. & Lee L. Rev. 1443 (2013)
• Jesika S. Wehunt, Note, Drawing the Line: DNA Databasing at Arrest and Sample Expungement, 29 Ga. St. U. L. Rev. 1063 (2013)
• George M. Dery III, Opening One's Mouth “For Royal Inspection”: the Supreme Court Allows Collection of DNA from Felony Arrestees in Maryland v. King, 2 Va. J. Crim. L. 116 (2014)
• Stephanie B. Noronha, Comment, Maryland v. King: Sacrificing the Fourth Amendment to Build up the DNA Database, 73 Md. L. Rev. 667 (2014)
• Brian Clark Stuart, Comment, Dethroning King: Why the Warrantless DNA Testing of Arrestees Should Be Prohibited under State Constitutions, 83 Miss. L.J. 1111 (2014)
• Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to "former arrestees")

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References

Julie Samuels, Elizabeth Davies, Dwight Pope et al., Collecting DNA From Arrestees: Implementation Lessons, NIJ J., June 2012, http://www.nij.gov/journals/270/arrestee-dna.htm

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