Compulsory DNA Collection: A Fourth Amendment Analysis

Prepared for Members and Committees of Congress

Despite relying on different legal standards, courts have generally upheld laws authorizing law
enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the
Fourth Amendment of the U.S. Constitution. However, several developments might call this
judicial consensus into question.
First, whereas prior laws authorized compelled extraction of DNA samples only from people who
had received a criminal conviction, new state and federal laws have expanded law enforcement’s
DNA collection authority to include people who have been arrested or detained but not convicted
on criminal charges. Although on the federal level the U.S. Department of Justice has yet to
implement this expanded authority, the Department has proposed a rule that would do so. In
addition, several states now require DNA samples from arrestees. This expansion is likely to alter
the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection
laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction
punishment under Fourth Amendment precedent. For people whom the government has arrested
but not yet convicted, it appears that this reduction in privacy rights either does not apply or
applies to a lesser extent.
Second, emerging scientific research suggests that the type of DNA used in forensic analysis
might implicate a greater privacy intrusion than courts had previously assumed. Federal Bureau
of Investigation (FBI) analysts derive DNA profiles from so-called “junk DNA,” which is non-
genic DNA, because it is thought to lack both a biological purpose and indicators of sensitive
medical characteristics. However, as new studies call this assumption into question, the privacy
intrusion caused by DNA analysis might weigh more heavily against the government in Fourth
Amendment decisions.
Finally, most courts have yet to review the constitutionality of storing convicts’ DNA profiles
beyond the time of sentence completion. Especially as law enforcement officers collect DNA
samples from people convicted for crimes with relatively short sentences, defendants are likely to
challenge ongoing DNA storage under the Fourth Amendment.
With these developments, it is possible that future DNA collection cases might raise graver
Fourth Amendment privacy concerns than previous cases. This change might lead courts to apply
a more stringent legal standard or to find that the intrusion upon petitioners’ privacy rights
outweighs governmental interests in the general Fourth Amendment balancing test. However,
statutory protections, such as the existing federal provision requiring expungement of DNA
evidence after an arrestee’s acquittal, might safeguard the government against a finding that DNA
collection or analysis constitutes an unreasonable search or seizure under the Fourth Amendment.
This report surveys existing case law and provides a constitutional analysis of these issues.

Introduc tion ..................................................................................................................................... 1
Background on Law Enforcement Use of DNA..............................................................................2
Statutory Framework.......................................................................................................................3
Expansion of Statutory Authorities for DNA Collection and Analysis.....................................3
Expungement Provisions...........................................................................................................5
Fourth Amendment Overview.........................................................................................................5
Search or Seizure.......................................................................................................................5
“Reasonableness” Inquiry When the Fourth Amendment Applies............................................7
Diminishment of Convicts’ Privacy Expectations Under Supreme Court Precedent................8
Case Law on DNA Collection.........................................................................................................9
Issues the Courts are Likely to Consider.......................................................................................12
Expansion of DNA Collection Laws to Arrestees...................................................................12
New Research on Junk DNA..................................................................................................14
Storage of DNA Profiles After Punishment Ends...................................................................14
Conclusion ..................................................................................................................................... 15
Author Contact Information..........................................................................................................16

In recent years, state and federal laws have facilitated law enforcement’s expanded use of 1
deoxyribonucleic acid (DNA) for investigating and prosecuting crimes. Such laws authorize
compulsory collection of biological matter, which local law enforcement agencies send to the
Federal Bureau of Investigation (FBI) for analysis. The FBI then stores unique DNA profiles in a
national distributive database, through which law enforcement officials match individuals to
crime scene evidence. Early laws authorized compulsory extraction of DNA only from people
convicted for violent or sex-based felonies, such as murder, kidnapping, and offenses “related to
sexual abuse” – crimes associated with historically high recidivism rates and for which police 2
were likely to find evidence at crime scenes. Since the turn of the century, new laws have greatly
extended the scope of compulsory DNA collection, both by expanding the range of offenses
triggering collection authority, and, more recently, by authorizing compulsory collection from
people who have been arrested but not convicted.
There is no question that DNA is an incredibly powerful tool for identifying criminal perpetrators.
However, increasing reliance on DNA in forensic science implicates constitutional concerns. In
particular, many litigants have challenged compulsory collection and the subsequent analysis and
storage of DNA as unreasonable searches and seizures under the Fourth Amendment to the U.S.
Although they have reached their conclusions using different analytical approaches, federal and
state courts have generally upheld compulsory DNA collection as non-violative of the Fourth
Amendment. However, despite the emerging consensus regarding the constitutionality of
compelled DNA extraction, it is too early to conclude that no Fourth Amendment constraints limit
the practice, for several reasons. First, previous cases involved the collection of DNA samples
from people who had been convicted of a crime, including prisoners, parolees, probationers, and
individuals on supervised release – groups who are deemed to have a reduced expectation of
privacy by virtue of their post-conviction status. Courts have not fully considered legal
implications of recent extensions of DNA-collection authority to people whom the government
has arrested but not tried or convicted. Second, despite the “rapid pace of technological 3
development in the area of DNA analysis,” much of DNA’s scientific value remains a mystery. A
discovery that DNA analysis reveals more sensitive biological information than previously
assumed could alter the balance of government interests versus privacy concerns in Fourth
Amendment cases. Third, courts have yet to evaluate the FBI’s ongoing storage of convicted
individuals’ DNA profiles beyond the completion of sentences. After summarizing the statutory
authorities, constitutional principles, and case law related to compulsory DNA extraction, this
report analyzes potential impacts of these developments for Fourth Amendment cases.
For more on the progression of federal legislation authorizing use of DNA, see CRS Report RL32247, DNA Testing
for Law Enforcement: Legislative Issues for Congress, by Nathan James.
2 For example, offenses triggering DNA collection authority under the original DNA Analysis Backlog Elimination Act
of 2000, P.L. 106-546 (2000), included: murder, voluntary manslaughter, and other offense relating to homicide;
offenses relating to sexual abuse, sexual exploitation or other abuse of children, or transportation for illegal sexual
activity; offenses relating to peonage and slavery; kidnapping; offenses involving robbery or burglary; certain offenses
committed within Indian territory; and attempt or conspiracy to commit any of the above offenses.
3 United States v. Weikert, 504 F.3d 1, 3 (1st Cir. 2007).

DNA is a complex molecule found in human cells and “composed of two nucleotide strands,” 4
which “are arranged differently for every individual except for identical twins.” Relatively new
technology enables DNA analysts to determine the arrangement of these strands, thereby creating 5
unique DNA profiles.
In the law enforcement context, DNA profiles function like “genetic fingerprints” that aid in 6
matching perpetrators to their crimes. As with fingerprints, law enforcement officers collect
DNA samples from specific classes of individuals, such as prisoners. However, compulsory DNA
collection generally entails blood or saliva samples rather than finger impressions, and DNA 7
profiles can later match any of many types of biological matter obtained from crime scenes. For
these reasons, DNA matching is a “critical complement to,” rather than merely a supplement for, 8
fingerprint analysis in identifying criminal suspects.
The FBI administers DNA storage and analysis for law enforcement agencies across the country.
After a law enforcement agency’s phlebotomist collects a blood sample pursuant to state or
federal law, the agency submits the sample to the FBI, which creates a DNA profile and stores the
profile in the Combined DNA Index System, a database through which law enforcement officers 9
match suspects to DNA profiles at the local, state, and national levels.
FBI analysts create DNA profiles by “decoding sequences of ‘junk DNA.’”10 So-called “junk
DNA,” the name for “non-genic stretches of DNA not presently recognized as being responsible
for trait coding,” is “‘purposefully selected’” for DNA analysis because it is not “associated with
any known physical or medical characteristics,” and thus theoretically poses only a minimal 11
invasion of privacy. However, scientific research on junk DNA is still emerging, and new
4 th
United States v. Kincade, 345 F.3d 1095, 1096 n.2 (9 Cir. 2003), vacd and rehearing en banc granted, 354 F.3d th
1000 (9 Cir. 2003).
5 Forensic scientists useshort tandem repeat technology to analyze 13 DNA regions, orloci.” Although it is
theoretically possible that two unrelated people could share identical DNA strands, “the odds that two individuals will
have the same 13-loci DNA profile is about one in a billion.” Department of Energy, Human Genome Project
Information: DNA Forensics, at
6 See DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection Act of
2006, 73 Fed. Reg. 21,083, 21,084 (April 18, 2008) (to be codified at 28 C.F.R. pt. 28) (DNA profiles, which embody
information concerning 13 ‘core loci,’ amount togenetic fingerprints that can be used to identify an individual
7 Under federal statute and analogous state laws, officials collect DNA fromtissue, fluid, or other bodily sample.” 42
U.S.C. §14135a(c)(1). To facilitate especiallyreliable DNA analysis, FBI guidelines direct federal law enforcement th
officials to rely on blood samples. See United States v. Kincade, 379 F.3d 813, 817 (9 Cir. 2004) (en banc).
8 DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection Act of 2006,
73 Fed. Reg. at 21,084.
9 The Combined DNA Index System includes ahierarchy of DNA-profile databases, including a National DNA
Index System, which facilitates sharing of DNA profiles between participating law enforcement agencies throughout
the country; a State DNA Index System, through which DNA profiles are shared throughout a state; and a Local DNA
Index System, from which DNA profiles originate before being added to the higher-level indexing systems. Within
these systems, profiles are categorized into offender profiles, arrestee profiles, and other categories. For a more detailed
description of the system, see
10 United States v. Amerson, 483 F.3d 73, 76 (2d Cir. 2007) (quoting H.R. Rep. No. 106-900 (2000)).
11 See Kincade, 379 F.3d at 818; H.R. Rep. No. 106-900 at 27 (2000).

research suggests that junk DNA has more biological value than previously assumed. For
example, in October 2008, University of Iowa researchers released study findings showing that
junk DNA has the potential to “evolve into exons, which are the building blocks for protein-12
coding genes.” Other scientists have similarly argued that there might be “gems among the 13
junk” in DNA. Hence, a remaining question is whether use of junk DNA will continue to offer
superficial identifying information or whether it will reveal more detailed medical or biological

The categories of individuals from whom law enforcement officials may require DNA samples
has expanded in recent years. The federal government and most states authorize compulsory
collection of DNA samples from individuals convicted for specified criminal offenses, including
all felonies in most jurisdictions and extending to misdemeanors, such as failure to register as a
sex offender or crimes for which a sentence greater than six months applies, in some 14
jurisdictions. In addition, a few statutes now authorize compulsory collection from people
whom the government has arrested or detained but not convicted. The DNA Analysis Backlog
Elimination Act 2000, codified as amended in Title 42 of the United States Code, authorizes
compulsory collection from individuals in federal custody, including those detained or arrested, 15
and from individuals on release, parole, or probation in the federal criminal justice system.
Under the federal law, if an individual refuses to cooperate, relevant officials “may use or
authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNA 16
sample.” State laws vary, but nearly all states authorize compulsory DNA collection from
people convicted for specified crimes, and a small but growing number of states also authorize 17
compulsory collection from arrestees.
At the federal level, statutory authority for compulsory DNA collection has expanded relatively
rapidly. During the 1990s, a trio of federal laws created the logistical framework for DNA
collection, storage, and analysis. The DNA Identification Act of 1994 provided funding to law
enforcement agencies for DNA collection and created the FBI’s Combined DNA Index System to
Lin L, Shen S, Tye A, Cai JJ, Jiang P, et al. Diverse Splicing Patterns of Exonized Alu Elements in Human Tissues.
PLoS Genet 4(10): e1000225. doi:10.1371/journal.pgen.1000225 (2008), at
13 W. Wayt Gibbs. The Unseen Genome: Gems Among the Junk. Sci. Am. 29 (Nov. 2003).
14 As of July 2008, the federal government and all states except Idaho, Nebraska, New Hampshire, and Pennsylvania
authorized DNA collection from people convicted of any felony. In addition, 16 states authorized DNA collection from
people convicted of some misdemeanors. See National Conference of State Legislatures, State Laws on DNA Data
Banks (July 2008), at
15 42 U.S.C. §14135a.
16 Id. at §14135a(a)(4)(A).
17 See National Conference of State Legislatures, State Laws on DNA Data Banks (July 2008), at

facilitate the sharing of DNA information among law enforcement agencies.18 Next, the
Antiterrorism and Effective Death Penalty Act of 1996 authorized grants to states for developing 19
and upgrading DNA collection procedures, and the Crime Identification Technology Act of 20
1998 authorized additional funding for DNA analysis programs. The resulting framework
centers on the Combined DNA Index System; more than 170 law enforcement agencies 21
throughout the country participate in the system.
In recent years, federal and state laws have expanded law enforcement authority for collecting
DNA in at least two ways. First, laws have increased the range of offenses which trigger authority
for collecting and analyzing DNA. In the federal context, the DNA Analysis Backlog Elimination
Act of 2000 limited compulsory extraction of DNA to people who had been convicted of a 22
“qualifying federal offense.” Under the original act, “qualifying federal offenses” included 23
limited but selected felonies, such as murder, kidnapping, and sexual exploitation. After
September 11, 2001, the USA PATRIOT Act expanded the “qualifying federal offense” definition 24
to include terrorism-related crimes. In 2004, the Justice for All Act further extended the 25
definition to reach all crimes of violence, all sexual abuse crimes, and all felonies. Similarly, 26
almost all states now authorize collection of DNA from people convicted of any felony.
Second, the 109th Congress authorized the Attorney General, in his discretion, to require
compulsory DNA collection from people who have been detained or arrested but not convicted on 27
criminal charges. Specifically, the DNA Fingerprinting Act of 2005 authorized collection “from
individuals who are arrested or from non-U.S. persons who are detained under the authority of the 28
United States.” In response, the U.S. Department of Justice proposed a rule to implement this
authorization; the new rule would direct U.S. agencies to collect DNA samples from “individuals
who are arrested, facing charges, or convicted, and from non-United States persons who are 29
detained under authority of the United States.” Some states have likewise enacted laws 30
authorizing collection of arrestees’ DNA.
P.L. 103-322, 108 Stat. 2065 (1994) (codified at 42 U.S.C. §§ 14131-14134).
19 P.L. 104-132, 110 Stat. 1214 (1996).
20 P.L. 105-251, 112 Stat. 1871 (1998).
21 See
22 42 U.S.C. §14135a(a)(1)(B).
23 P.L. 106-546, §3, 114 Stat. 2726, 2729-30 (2000).
24 P.L. 107-56, §503, 115 Stat. 272, 364 (2001).
25 P.L. 108-405, §203(b), 118 Stat. 2260, 2270 (2004) (codified at 42 U.S.C. §14135a(a)(2)).
26 See National Conference of State Legislatures, State Laws on DNA Data Banks (July 2008),
27 DNA Fingerprint Act of 2005, Tit. X, P.L. 109-162, 119 Stat. 2960; Adam Walsh Child Protection and Safety Act of
2006, sec. 155, P.L. 109-248, 120 Stat. 587 (2006) (codified at 42 U.S.C. §14135a(a)(1)).
28 42 U.S.C. §14135a(a)(1).
29 DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection Act of
2006, 73 Fed. Reg. 21,083 (April 18, 2008).
30 See, e.g., Kan. Stat. Ann. §21-2511(e)(2) (authorizing DNA collection from individuals arrested for any felony or
certain other crimes); N.M. Stat. §29-16-6(B) (authorizing collection of DNA samples from individuals arrested for
specific violent felonies); Va. Code Ann. §19.2-310.2:1 (requiring collection of DNA samples from arrested for the
commission or attempted commission of a violent felony).

Whereas the increase in the range of triggering offenses appears to be a natural outcome of
DNA’s success as a forensic tool, the expansion to collection from arrestees appears to be a more
legally significant step. Overall, it seems Congress’ goal for the expansion to arrestees was to
facilitate crime prevention through “the creation of a comprehensive, robust database that will 31
make it possible to catch serial rapists and murderers before they commit more crimes.” In
background material for its implementing rule, the Justice Department explains that collection
from arrestees will facilitate more effective law enforcement for at least two reasons: (1) it will
aid in crime prevention by ensuring that the government need not wait until a crime has been
committed before creating an individual’s DNA profile; and (2) it will allow federal authorities to
create DNA profiles for aliens detained in the United States, who might not otherwise undergo 32
judicial proceedings in U.S. courts.
Although Congress expanded statutory authority for DNA collection, it has also provided some
protection for arrestees when arrest does not result in conviction. In particular, federal law
mandates expungment of DNA samples upon an arrestee’s showing of discharge or acquittal: the
FBI and relevant state agencies “shall promptly expunge” DNA information “from the index”
upon receipt of “a final court order establishing that such charge has been dismissed or has 33
resulted in an acquittal or that no charge was filed within the applicable time period.” Officials 34
must also expunge DNA data for convicts in cases where a conviction is overturned. These
provisions apply to DNA collected by state and local law enforcement officers, in addition to
DNA collected in the federal justice or detention systems.

The Fourth Amendment to the U.S. Constitution provides a right “of the people to be secure in 35
their persons, houses, papers, and effects, against unreasonable searches and seizures.” Two
fundamental questions arise in every Fourth Amendment challenge. First, does the challenged
action constitute a search or seizure by federal or local government and thus trigger the Fourth 36
Amendment right? Second, if so, is the search or seizure “reasonable”?
Different tests trigger the Fourth Amendment right depending on whether a litigant challenges
government conduct as a seizure or as a search. Seizures involve interference with property
151 Cong. Rec. S13756 (daily ed. Dec. 16, 2005) (statement of Sen. Kyl).
32 DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection Act of
2006, 73 Fed. Reg. at 21,084.
33 42 U.S.C. §14132(d).
34 Id. However, no provision requires expungement of DNA upon a convict’s completion of his or her sentence.
35 U.S. Const. amend. IV.
36 Courts have applied the Fourth Amendment to state and local government actions since 1961, when, in Mapp v.
Ohio, the Supreme Court interpreted the Fourteenth Amendment as having incorporated the Fourth Amendment to the
states. 367 U.S. 643, 655 (1961).

rights; a seizure of property occurs when government action “meaningfully interferes” with 37
possessory interests or freedom of movement.
In contrast, searches interfere with personal privacy. Government action constitutes a search when 38
it intrudes upon a person’s “reasonable expectation of privacy.” A reasonable expectation of
privacy requires both that an “individual manifested a subjective expectation of privacy in the 39
searched object” and that “society is willing to recognize that expectation as reasonable.” In
general, people have no reasonable expectation of privacy for physical characteristics they 40
“knowingly expos[e] to the public.” In evaluating whether people “knowingly expose”
identifying characteristics, the Supreme Court has sometimes distinguished the drawing of blood
and other internal fluids from the taking of fingerprints: whereas the Court has at times signaled 41
that people lack a reasonable expectation of privacy in their fingerprints, it has held that
extraction of blood, urine, and other fluids implicates an intrusion upon a reasonable expectation
of privacy, presumably because the former category is “knowingly exposed” to the public while 42
the latter category generally is not.
Under modern Supreme Court precedent, a further complicating factor is that reasonable
expectation of privacy depends not only on the type of evidence gathered, but also on the status of
the person from whom it is gathered. The inquiry is not simply a yes-or-no determination, but
appears to include a continuum of privacy expectations. For example, in United States v. Knights,
the Court held that the “condition” of probation “significantly diminished” a probationer’s 43
reasonable expectation of privacy. This diminished privacy expectation did not completely
negate the probationer’s Fourth Amendment right; however, it affected the outcome under the 44
Court’s Fourth Amendment balancing test.
See United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J., concurring in result); Michigan v. Summers, 452
U.S. 692, 696 (1981).
38 Some justices and experts have noted the circularity of the combination of this definition and the general Fourth
Amendment “reasonableness” inquiry. See, e.g., Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring).
However, such criticisms have not yet caused the Court to reconsider its test, except perhaps for the narrow category of
interiors of homes, for which the Court has found a near-automatic reasonable expectation of privacy by virtue of
privacy in the home havingroots deep in the common law. See Kyllo v. United States, 533 U.S. 27, 34 (2001).
39 Kyllo, 533 U.S. at 33 (citing California v. Ciraolo, 476 U.S. 207, 211 (1986)).
40 Katz v. United States, 389 U.S. 347, 351 (1967).
41 See, e.g., Davis v. Mississippi, 394 U.S. 721, 727 (1969) (Fingerprinting involves none of the probing into an
individual’s private life and thoughts that marks an interrogation or search.”). Later, in Hayes v. Florida, the Supreme
Court seemed to suggest that fingerprinting does constitute a search, 470 U.S. 811, 814 (1985) (referring to
fingerprinting as less intrusive than other types of searches and seizures), a shift in keeping with the Court’s broader
trend toward classifying more activity as constituting a search and leaving the heart of the constitutional analysis for the
Fourth Amendment “reasonableness inquiry. Thus, it appears that although the Court views the drawing of blood as a
greater intrusion than fingerprinting, both activities now qualify as searches.
42 See, e.g., Skinner v. Ry. Labor Executives Assn, 489 U.S. 602, 616 (1989) (We have long recognized that a
compelled intrusio[n] into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth
Amendment search (quoting Schmerber v. California, 384 U.S. 757, 767-768 (1966)). This distinction contrasts with
the Supreme Court’s rejection of a blood-versus-fingerprints distinction in the context of the confrontation clause to the
Sixth Amendment of the U.S. Constitution, wherein the Court has held neither fingerprinting nor the taking of blood
are barred because they are bothreal and physical” rather than “testimonial” evidence. See Pennsylvania v. Muniz,
496 U.S. 582, 591 (1990).
43 534 U.S. 112, 119-120 (2001).
44 Id.

When government action constitutes a search or seizure, “reasonableness” is the “touchstone” of 45
constitutionality. However, courts apply different standards, in different circumstances, to
determine whether searches and seizures are reasonable. The Court’s Fourth Amendment analysis
falls into three general categories.
The first category involves traditional law enforcement activities, such as arrests or searching of
homes. To be reasonable, these activities require “probable cause,” which must be formalized by 46
a warrant unless a recognized warrant exception applies. Probable cause is “a fluid concept –
turning on the assessment of probabilities in particular factual contexts – not readily, or even 47
usefully, reduced to a neat set of legal rules,” yet it is considered the most stringent Fourth
Amendment standard. In the context of issuing warrants, probable cause requires an issuing
magistrate to make a “common sense” determination, based on specific evidence, whether there 48
exists a “fair probability” that, for example, an area contains contraband.
The second category, introduced in the Supreme Court case Terry v. Ohio, involves situations in
which a limited intrusion satisfies Fourth Amendment strictures with a reasonableness standard 49
that is lower than probable cause. For example, in Terry, a police officer’s patting of the outside
of a man’s clothing to search for weapons required more than “inchoate and unparticularized
suspicion” but was justified by “specific reasonable inferences” that the man might have a 50
weapon. In such situations, courts permit searches justified by “reasonable suspicion,” which is
a particularized suspicion prompted by somewhat less specific evidence than probable cause 51
The third category includes “exempted area,” “administrative,” “special needs,” and other
“suspicionless” searches. Examples include routine inventory searches, border searches,
roadblocks, and drug testing. In these circumstances, courts apply a “general approach to the
Fourth Amendment” – also called the “general balancing,” “general reasonableness,” or “totality-
of-the circumstances” test – to determine reasonableness “by assessing, on the one hand, the
degree to which [a search or seizure] intrudes upon an individual’s privacy and, on the other, the 52
degree to which it is needed for the promotion of legitimate governmental interests.” Although
the Supreme Court has expanded the scope of application for this test, the approach historically
applied only when a search or seizure satisfied parameters for one of several narrow categories. In
particular, it applied where a routine, administrative purpose justified regular searches; where a
long-recognized exception existed, such as for border searches; or where a “special nee[d],
Knights, 534 U.S. at 118.
46 See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (recognizing a warrant exception for arrest of an
individual who commits a crime in an officer’s presence, as long as the arrest is supported by probable cause).
47 Illinois v. Gates, 462 U.S. 213, 232 (1983).
48 Id. at 238.
49 392 U.S. 1, 7 (1968).
50 Id. at 21-22, 27.
51 Alabama v. White, 496 U.S. 325, 330 (1990) ([r]easonable suspicion is a less demanding standard than probable
52 Samson v. California, 547 U.S. 843, 848 (2006).

beyond the normal need for law enforcement, [made] the warrant and probable cause 53
requirements impracticable.”
In the context of law enforcement’s collection of DNA from prisoners, parolees, and others
subject to law enforcement supervision, questions remain regarding when a special need, distinct
from law enforcement interests, must exist before a court may apply a general reasonableness
standard. Although the special needs test arose in the context of drug testing, the Supreme Court
has held that probation and other post-conviction punishment regimes qualified as special needs
with purposes distinct from law enforcement. For example, in Griffin v. Wisconsin, the Court held
that a “state’s operation of a probation system, like its operation of a school, government office or
prison, or its supervision of a regulated industry ... presents ‘special needs’ beyond law 54
enforcement.” As discussed below, later Supreme Court cases seemed to suggest that a
defendant’s post-conviction status, alone, might justify a court’s direct application of a general
reasonableness test to DNA collection, without any finding of a special need.
Since 2000, the Supreme Court has twice applied a general reasonableness test in Fourth
Amendment cases involving people serving post-conviction punishments – specifically, in cases
involving a probationer and a parolee – without first finding special needs justifying the
government action. In both cases, the Court’s legal basis for directly applying the general
balancing approach was the reduced expectation of privacy to which each defendant was entitled
by virtue of his post-conviction status. In addition to providing a justification for rejection of the
special needs test, this same diminishment of defendants’ privacy expectations also favored the
government in the Court’s application of the general balancing test.
In United States v. Knights, a 2001 case, a California court had sentenced Mark Knights to 55
probation for a drug offense. One condition of his probation was that his “person, property, 56
place of residence,” etc., were subject to search “with or without a search warrant.” After
finding some evidence that appeared to link him with a fire at a local telecommunications vault, a 57
police detective searched Knights’ home without a warrant. Emphasizing the curtailment of
privacy rights that correspond with probation and other post-conviction punishment regimes, the
Court evaluated the search under the general balancing test, without first identifying an 58
administrative purpose or special needs justification. In addition, Knights’ diminished
expectation of privacy affected the outcome under the Court’s general Fourth Amendment
balancing test. Noting that “Knights’ status as a probationer subject to a search condition informs
Griffin v. Wisconsin, 483 U.S. 868, 873 (1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun,
J., concurring)).
54 Id. at 873-74.
55 534 U.S. 112, 114 (2001).
56 Id.
57 Id. at 115.
58 Id. at 119-20. (noting thatjust as other punishments for criminal convictions curtail an offenders freedoms, a court
granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-
abiding citizens and concluding thatthe probation condition thus significantly diminished Knight’s reasonable
expectation of privacy).

both sides of that balance,” the Court easily upheld the officer’s search based on reasonable 59
In Samson v. California, a 2006 case, the Court extended Knights to uphold a search of a
parolee’s pockets, for the first time directly applying the general reasonableness test to a search
justified only on the basis of the petitioner’s status as a parolee, rather than on any particularized 60
suspicion. As in Knights, the Samson Court explicitly rejected arguments that a special needs
analysis was required; instead, finding that the petitioner’s post-conviction status diminished his 61
privacy rights, the Court again directly applied a “general Fourth Amendment approach.” In
addition, as in Knights, the Samson court held that a parolee’s diminished privacy right affected 62
the outcome of the general balancing test.
It is unclear what other categories of people might be subject to a reduced expectation of privacy
by virtue of their status. For example, given that the Court’s language in Knights and Samson
emphasized petitioners’ post-conviction status, it is not clear whether the Court would find a
comparably diminished expectation of privacy for people arrested or detained but not convicted.

Courts have uniformly held that compulsory DNA collection and analysis constitutes a search, 63
and thus triggers Fourth Amendment rights. Although some courts have signaled that DNA
collection or storage might also constitute a seizure, courts have generally not addressed that 64
However, nearly all courts that have reviewed laws authorizing compulsory DNA collection have 65
upheld the laws against Fourth Amendment challenges. Although the U.S. Supreme Court has
Id. at 119, 121-22 (after discussing the interests on both sides of the general reasonableness test, holdingthat the
balance of these considerations requires no more than reasonable suspicion to conduct a search of petitioner’s house”).
60 547 U.S. 843 (2006).
61 Id. at 848. In parts, the Knights opinion appeared to suggest that conditions explicitly imposed upon the probationer,
rather than the probationer’s status itself, created the diminished privacy expectation. However, in a footnote, the
Knights court signaled its support for the rationale, later adopted in Samson, that post-conviction status itself
diminishes a probationer’s or a parolee’s expectation of privacy. Specifically, the Knights Court cited the Wisconsin
Supreme Court’s holding in Griffin thatprobation diminishes a probationers reasonable expectation of privacy – so
that a probation officer may, consistent with the Fourth Amendment, search a probationer’s home without a warrant,
and with onlyreasonable grounds (not probable cause) to believe that contraband is present.” Knights, 534 U.S. at
118 n.3 (citing Griffin, 483 U.S. at 872.).
62 Samson, 547 U.S. at 850-52.
63 See, e.g., United States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007) (“It is settled law that DNA indexing statutes,
because they authorize both a physical intrusion to obtain a tissue sample and a chemical analysis to obtain private
physiological information about a person, are subject to the strictures of the Fourth Amendment.”).
64 See, e.g., United States v. Kincade, 345 F.3d 1095, 1100 n.13 (9th Cir. 2003) (Although the taking of blood may
properly be characterized as a Fourth Amendment seizure, because it interferes with [the appellant’s] ‘possessory
interest in his bodily fluids, for present purposes we consider only the search, and note that the ‘privacy expectations
protected by this [the seizure] are adequately taken into account by our conclusion that such intrusions are searches”)
(quoting Skinner v. Ry. Labor Executives Assn, 489 U.S. 602, 617 n.4 (1989)).
65 One exception is the panel decision of the U.S. Court of Appeals for the Ninth Circuit in United States v. Kincade,
which was later overturned in an en banc decision. 345 F.3d 1095 (9th Cir. 2003), vacd and rehearing en banc granted, th
354 F.3d 1000 (9 Cir. 2003).

never accepted a DNA collection case, U.S. Courts of Appeals for the First, Second, Sixth,
Seventh, Eight, Ninth, Tenth, and Eleventh Circuits have upheld the 2004 version of the federal
DNA collection law, which authorized collection and analysis of DNA from people convicted of 66
any felony, certain sexual crimes, and crimes of violence. Likewise, federal courts of appeals 67
have upheld numerous state DNA collection laws. Although at least one state court has upheld 68
compelled extraction of DNA from arrestees, federal courts have generally not yet reviewed the 69

2006 amendment or the practice of collecting DNA from arrestees.

Courts have relied on different legal tests in upholding DNA collection laws.70 While most courts
have directly applied a general reasonableness approach, some courts have first evaluated 71
government actions under the special needs test. The majority of the federal courts of appeals
have interpreted Samson as affirmatively requiring courts to apply the general reasonableness
test, without a special needs prerequisite, at least as applied to prisoners or other individuals with
post-conviction status. For example, in Wilson v. Collins, the Court of Appeals for the Sixth
Circuit interpreted Samson as requiring direct application of the general balancing test in a case 72
involving a prisoner. Likewise, in United States v. Weikert, a case involving compulsory
collection of DNA from a man on supervised release, the Court of Appeals for the First Circuit
66 st
United States v. Weikert, 504 F.3d 1 (1 Cir. 2007); United States v. Amerson, 483 F.3d 73 (2d Cir. 2007); Wilson v. thth
Collins, 517 F.3d 421 (6 Cir. 2006); United States v. Hook, 471 F.3d 766 (7 Cir. 2006); United States v. Kraklio, 451 thth
F.3d 922 (8 Cir. 2006); United States v. Kriesel, 508 F.3d 941 (9 Cir. 2007); United States v. Banks, 490 F.3d 1178 thth
(10 Cir. 2007); United States v. Castillo-Lagos, 147 Fed. App’x. 71 (11 Cir. 2005).
67 Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005) (upholding the Georgia statute); Green v. Berge, 354 F.3d 675 (7th
Cir. 2004) (upholding the Wisconsin statute); Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) (upholding the th
Oklahoma statute); Schlicher v. Peters, 103 F.3d 940 (10 Cir. 1996) (upholding the Kansas statute); Boling v. Romer, thth
101 F.3d 1336 (10 Cir. 1996) (upholding the Colorado statute); Jones v. Murray, 962 F.2d 302 (4 Cir. 1992)
(upholding the Virginia statute).
68 Anderson v. Virginia, 650 S.E.2d 702, 706 (Vir. 2006) (upholding Virginias statute authorizing DNA collection
from arrestees). In Anderson, the Virginia Supreme Court analogized collection of DNA samples to the routine taking
of fingerprints, emphasizing that collecting such samples necessitated only a minimal privacy intrusion. Id. It rejected
the defendant’s assertion that the special needs test applied; instead, in one sentence, it concluded that the “same
rationale tipped the general balancing test in the government’s favor as applied to collection of DNA from convicted
felons. Id. (“In the case of convicted felons who are in custody of the Commonwealth ... the minor intrusion caused by
the taking of a [DNA] sample is outweighed by Virginia’s interest ... in determining inmates’ ‘identification
characteristics (quoting Jones v. Murray, 962 F.2d 302, 307 (Va. 1992)).
69 Although some federal courts issued opinions after the 2006 amendment that authorized collection from arrestees,
federal courts have yet to review a Fourth Amendment challenge to such authority. As discussed above, the U.S.
Department of Justice has issued a proposed rule but has not yet implemented the 2006 amendment, and state laws
extending DNA collection authority to arrestees are relatively new. In United States v. Kriesel, a 2007 decision, the
U.S. Court of Appeals for the Ninth Circuit emphasized that its holding did not extend to collection from arrestees. 508 th
F.3d 941, 948-49 (9 Cir. 2007) (We emphasize that our ruling today does not cover DNA collection from arrestees or
non-citizens detained in the custody of the United States, who are required to submit to DNA collection by the 2006
version of the DNA Act”).
70 See United States v. Kraklio, 451 F.3d 922, 924 (8th Cir. 2006) (The only disagreement among the circuits is what
analytical approach to use in upholding the [DNA collection] statutes.).
71 Contrast United States v. Weikert, 504 F.3d 1, 7 (1st Cir. Aug. 9, 2007); United States v. Banks, 490 F.3d 1178, 1183
(10th Cir. 2007); United States v. Kraklio, 451 F.3d 922, 924 (8th Cir. 2006); United States v. Castillo-Lagos, 147 Fed. th
App’x 71 (11 Cir. 2005) with United States v. Amerson, 483 F.3d 73, 78 (2d Cir. 2007); United States v. Hook, 471 th
F.3d 766, 772-74 (7 Cir. 2006). The Sixth Circuit has upheld the federal DNA collection law under both tests. United th
States v. Conley, 453 F.3d 674, 677-81 (6 Cir. 2006).
72 517 F.3d 421, 426 (6th Cir. 2008).

held that, under Samson, it was required to apply a general reasonableness test, rather than a 73
special needs test, in DNA collections cases.
In contrast, some federal courts of appeals have held that Samson did not affect their use of the
special needs test in suits challenging DNA collection statutes. For example, the Court of Appeals
for the Second Circuit declined to apply Samson in United States v. Amerson, a case upholding
compulsory DNA collection from two individuals on probation, one for larceny and one for wire 74
fraud. The court interpreted Samson very narrowly, as applying only in contexts involving a 75
“highly diminished” expectation of privacy. Similarly, although it directly applied the general
reasonableness test in Wilson, the Sixth Circuit suggested in that case that Samson might not 76
apply in a case involving a person who was not a prisoner.
The reading of Samson as limited to cases involving a significantly diminished expectation of
privacy appears to comport with the Supreme Court’s emphasis in Knights and Samson on the
diminished privacy rights that stem from a petitioner’s post-conviction status. In Samson, the
Court framed the question in the case as “whether a condition of release can so diminish or
eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless search by a 77
law enforcement officer would not offend the Fourth Amendment.”
So far, whether courts apply the special needs test before applying a general reasonableness test
in DNA cases has had little or no practical import, because courts have consistently upheld DNA
collection laws regardless of the standard they apply. Thus, courts have signaled that a change in
analytic tools would not affect the ultimate determination of constitutionality in DNA collection 78
cases involving convicted criminals. However, these courts have not yet addressed expanded
legal authority for collecting arrestees’ DNA, nor have they addressed implications of potential
discoveries regarding junk DNA’s biological purpose. As these new issues develop, the legal
standard applied may be relevant to the outcome of future cases; in a closer case, the decision to
apply the special needs test as an initial hurdle could become outcome determinative. In addition,
courts that have previously applied special needs analyses in DNA cases might change their
approach in cases involving arrestees, perhaps by adopting an interpretation of Samson as limited
to circumstances involving highly diminished expectations of privacy.
73 st
504 F.3d 1, 3 (1 Cir. 2007) (“We interpret the Supreme Court’s decision in Samson v. California to require that we
join the majority of the circuits in applying a ‘totality of the circumstances’ approach to the issues in this case, rather
than the ‘special needs’ analysis used by the minority of circuits” (citations omitted)). Similarly, some state courts have
interpreted Samson as applicable in compulsory DNA collection cases. For example, despite continuing to apply the
special needs test in DNA cases, the Supreme Court of New Jersey recognized that “the most recent United States
Supreme Court decision in Samson strongly suggests that the balancing test, which is an easier test for the State to
satisfy, should apply to a Fourth Amendment analysis.” State v. O’Hagen, 189 N.J. 140, 158 (2007).
74 483 F.3d at 73, 79 (2d Cir. 2007).
75 Id. (“while after Samson it can no longer be said thatthe Supreme Court has never applied a general balancing test
to a suspicionless-search regime, nothing in Samson suggests that a general balancing test should replace special needs
as the primary mode of analysis of suspicionless searches outside the context of the highly diminished expectation of
privacy presented in Samson) (quoting its previous opinion, Nicholas v. Goord, 430 F.3d 652, 666 (2d Cir. 2005)).
76 Wilson, 517 F.3d at 426 (noting that cases involving petitioners on supervised release had declined to follow
77 547 U.S. at 847.
78 See, e.g., Wilson, 517 F.3d at 427 n. 4 (“Even if we were to apply the more stringent special-needs test, there is no
reason to believe the ultimate result would be different.”).

Several issues are likely to complicate future cases involving DNA collection, analysis, and
storage. In particular: (1) the proposed Department of Justice rule and new state laws which
authorize collection from arrestees; (2) emerging science regarding biological purposes for junk
DNA; and (3) the FBI’s long-term storage of DNA profiles. Each of these factors potentially
increases the likelihood that expectation of privacy will outweigh governmental interests in future
Fourth Amendment analyses. However, for all issues, it is possible that existing expungement
provisions, together with additional protections that Congress could add, might create sufficient
safeguards such that DNA collection and analysis would withstand future Fourth Amendment
People who have been arrested but not yet convicted on criminal charges are likely challengers in
future DNA collection cases. The Justice Department’s proposed rule would implement the 2006 79
law expanding collection authority to arrestees, and several states have already taken that step.
This expansion of compulsory collection authority could alter the Fourth Amendment analysis for
at least two reasons. First, courts may be less likely to disregard the special needs test in cases
involving arrestees, because courts justify direct application of a general reasonableness test, in
part, by focusing on the reduced expectation of privacy to which various convicted individuals
are entitled under Supreme Court precedent. Second, the outcome of the general balancing test
might differ in cases involving arrestees rather than convicts, because courts would be less likely
to devalue the privacy-intrusion side of the balance on the basis of a defendant’s reduced
expectation of privacy.
For these reasons, any change in Fourth Amendment analyses involving arrestees may depend, in
large part, on differences that the courts find to exist, if any, between an arrestee’s reasonable
expectation of privacy and a convict’s reasonable expectation of privacy. Although it appears
from Supreme Court dicta that at least a lesser reduction in privacy rights would apply to
arrestees versus people with post-conviction status, courts have generally not addressed the
specific issue. In Knights and Samson, the Supreme Court referred to parolees and probationers as 80
being along a “‘continuum’ of state-imposed punishments.” Lower federal courts have
interpreted these and other Supreme Court decisions as suggesting that prisoners’ privacy
expectations are the most diminished; parolees have the next lowest diminishment in privacy 81
expectations, followed by people on supervised release and probationers. Presumably, arrestees
and detainees would have an even lower, if any, diminishment of their reasonable expectation of
privacy under the Fourth Amendment.
The Supreme Court’s justifications for convicted individuals’ reduced privacy expectations
emphasize the government’s authority to punish or otherwise restrict the freedom of people who
have been fairly convicted. In Samson, the Court held that a parolee lacked “an expectation of
DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection Act of
2006, 73 Fed. Reg. at 21,083.
80 Samson, 547 U.S. at 850 (quoting Knights, 534 U.S. at 119).
81 See, e.g., Wilson, 517 F.3d at 426-27 (a parolee ... has less diminished privacy rights than a prisoner).

privacy that society would recognize as legitimate,” because searches were a condition of parole, 82
which was a “‘an established variation on imprisonment.’” Thus, some federal courts of appeals
have stated that the fact that DNA was collected from a probationer or parolee rather than a 83
prisoner does not greatly affect the Fourth Amendment analysis. However, such statements
compared fellow convicts. They do not address potential differences between convicts and people
who have been arrested but not convicted. Arguably, arrestees are not on the “continuum of
punishment,” and thus should have no analogous diminishment in privacy rights. On the other
hand, one might argue that an arrestee’s or detainee’s position is similar to other individuals, such
as people hoping to enter the country’s borders, for whom courts have found a reduced
expectation of privacy not premised on an authority for punishment.
If arrestees have a normal or only minimally diminished reasonable expectation of privacy,
several legal consequences are likely to occur in future DNA cases. First, courts would be more
likely to find that Samson does not apply, and thus, that DNA collection must be supported by a
special need distinct from the need for law enforcement. Furthermore, although the Supreme 84
Court has found that a special need exists in the government’s operation of a probation system,
for arrestees there is arguably no clearly analogous “system” separate from law enforcement.
Thus, governments would need to prove that an alternative special need justification supports
DNA collection. Second, the Fourth Amendment general reasonableness test would likely entail a
closer contest between governments’ interest in preventing and prosecuting crimes, on one hand,
and the intrusion of privacy resulting from gathering and analyzing a person’s blood or saliva, on
the other hand.
However, despite the likelihood that the balancing test would present greater hurdles for the
government in future cases, it is possible that statutory protections could sufficiently offset
perceived intrusions on arrestees’ privacy to result in an outcome favoring the government. For
example, existing expungement requirements under federal law, which require expungement of
DNA records upon proof of acquittal or release, might offset the degree of intrusion on an
individual’s privacy enough that the general balancing test would result in a finding for the
Furthermore, governments are likely to offer new arguments to persuade courts that DNA
collection implicates only a minimal privacy intrusion. For example, in its proposed rule, the U.S. 85
Department of Justice emphasizes an analogy between DNA collection and fingerprinting. It is
unclear how effective such analogies will prove in judicial cases. At least one court has likened 86
DNA collection to fingerprinting that occurs during “routine booking” in order to show that the
privacy intrusion, especially given the status of the petitioner in the case as a probationer, was 87
relatively small. However, as noted above, the Supreme Court has previously drawn distinctions
See Samson, 547 U.S. at 852 (quoting Morrissey v. Brewer, 408 U.S. 471, 477 (1972)).
83 See, e.g., Banks v. United States, 490 F.3d 1178, 1184 (10th Cir. 2007) (holding that “the fact that the plaintiffs here
are on parole, supervised release, or probation, whereas the offenders in our prior cases were prisoners does not
materially change” the courts Fourth Amendment analysis).
84 Griffin, 483 U.S. at 873-84.
85 DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection Act of
2006, 73 Fed. Reg. at 21,084-85.
86 In general, the “routine booking” rationale has been used in Fifth Amendment (self-incrimination clause) rather than
in Fourth Amendment jurisprudence.
87 Amerson, 483 F.3d at 86 (While we do not hold that a probationer has no expectation of privacy in his or her
identity, we agree that, like all convicted felons, a probationer’s expectation of privacy in his or her identity is severely

between taking of fingerprints and drawing of blood, suggesting that blood extraction poses a
greater intrusion than taking fingerprints. In addition, although the routine nature of government
conduct has been a factor influencing courts’ decisions to apply a general reasonableness, rather
than a probable cause or reasonable suspicion, standard (for instance, in routine roadblock cases),
it would not eliminate the general reasonableness inquiry under the Fourth Amendment. Instead,
the routine nature of DNA collection would, at best, serve as one factor influencing a court’s
determination regarding the degree of privacy intrusion at issue. The extent to which such
arguments would persuade courts in Fourth Amendment balancing inquiries remains to be seen.
A second issue could alter courts’ determinations regarding the constitutionality of DNA analysis
and storage. Because FBI analysts rely on junk DNA, thought not to reveal sensitive medical or
biological information, courts have assumed that DNA analysis and storage involves only a
minimal privacy intrusion. However, language in some opinions suggest that this assumption
might change if scientists discover new uses for junk DNA. For example, the U.S. Court of
Appeals for the First Circuit has suggested that “discovery of new uses for ‘junk DNA’ would 88
require a reevaluation of the [Fourth Amendment] reasonableness balance.”
Proponents of expansive DNA collection argue that any privacy intrusion resulting from DNA
storage or analysis is minimal at most. When he introduced the amendment that authorizes
collection and analysis of DNA from arrestees in the federal system, Senator Kyl emphasized that
storage of DNA samples would not intrude upon individuals’ privacy rights, stating that “the
sample of DNA that is kept ... is what is called ‘junk DNA’ – it is impossible to determine 89
anything medically sensitive from this DNA.” Fourth Amendment challenges might gain legal
traction if researchers discover that junk DNA does in fact contain clues which reveal sensitive
biological or medical information.
A final issue that might arise in future DNA cases is the constitutionality of storing convicts’
DNA profiles after their sentences have ended. Although federal law requires the FBI to expunge 90
DNA profiles for people who receive acquittals or whose convictions are overturned, the
expungement provisions do not address storage of DNA from people who have been convicted
but have successfully completed their sentences. Rather, as the Ninth Circuit Court of Appeals
noted in United States v. Kriesel, “once they have [a person’s] DNA, police at any level of
government with a general criminal investigative interest ... can tap into that DNA without any 91
consent, suspicion, or warrant, long after his period of supervised release ends.” Defendants

diminished ...[g]iven the limits imposed on the collection, analysis, and use of DNA information by the statute, we see
the intrusion on privacy effected by the statute as similar to the intrusion wrought by the maintenance of fingerprint
records,’ which are collected as a part of everyday routine booking procedures ... DNA differs primarily from
fingerprinting in its greater accuracy” (quoting Nicholas, 430 F.3d at 671)).
88 United States v. Stewart, 532 F.3d 32, 36 (1st Cir. 2008).
89 151 Cong. Rec. S13757 (daily ed. Dec. 16, 2005) (statement of Sen. Kyl).
90 42 U.S.C. §14132(d).
91 508 F.3d 941, 952 (9th Cir. 2007).

have generally not raised this issue, but it might become a more prevalent argument since laws
have expanded collection authority to reach people convicted for relatively minor charges.
Some courts have signaled that storage after sentences are completed could alter the Fourth
Amendment analysis. For example, in an opinion upholding collection of DNA from a person on
supervised release, the U.S. Court of Appeals for the First Circuit warned that its opinion had an
“important limitation.” Namely, because the petitioner was “on supervised release and will
remain so until 2009, [the court did] not resolve the question of whether it is also constitutional to 92
retain the DNA profile in the database after he is no longer on supervised release.” Such courts
might be receptive to arguments regarding the long-term storage of DNA as an unconstitutional
search, especially if a court views completing a sentence as restoring a person’s reasonable
expectation of privacy. Alternatively, a court might view ongoing DNA storage as an
unconstitutional seizure, especially if a court views people as having a possessory interest in their
blood, as at least some courts appear to do. However, as previously noted, courts have typically
resisted seizure analyses in DNA cases. Alternatively, the government might argue that a
conviction permanently diminishes a person’s Fourth Amendment rights such that long-term
DNA storage permissibly accompanies post-conviction status. It is unclear how courts would
respond to such an argument.

Although nearly all courts that have addressed the issue have upheld compulsory DNA collection
and analysis as constitutional under the Fourth Amendment, it would be premature to assume that
all compulsory DNA collection laws would survive Fourth Amendment scrutiny. First, amid
quickly expanding authority for DNA collection, constitutional analyses might change when DNA
is collected from people merely arrested, rather than convicted, for criminal behavior. Second, in
light of rapidly developing science regarding junk DNA, courts might find that DNA collection
implicates greater privacy concerns than currently assumed. Finally, courts have not yet addressed
the constitutionality of ongoing storage of DNA.
However, although these issues are likely to complicate future case law, statutory protections
could ensure that courts would continue to uphold expansions of DNA collection authority as
constitutional. For example, existing expungement provisions might aid the government in cases
involving arrestees or detainees. In the future, additional protections, such as restrictions on the
use of DNA in analysis or expungement of DNA profiles after sentence completion, might
become necessary – if constitutionality of DNA collection practices under the Fourth Amendment
is to be ensured.
Weikert, 504 F.3d at 2.

Anna C. Henning
Legislative Attorney, 7-4067