Collecting Arrestees’ DNA

The News and Observer reports today on “a proposal to collect DNA from suspects when they are arrested for felonies or violent crimes.” The bill in question is H1403, and it states that “any person who is arrested for committing a felony must provide his or her DNA sample . . . for . . . analysis and testing.” (I don’t see anything about “violent crimes” in the bill.) Readers will not be surprised to learn that the Attorney General supports the bill, while the ACLU is against it.

I’ve blogged about this idea before. A similar bill was introduced last session, and I discussed the issue in this post. I noted that the constitutionality of this type of law isn’t settled, and I won’t repeat the analysis here. Instead, I’ll note that officers already obtain DNA samples from arrestees in many cases. Sometimes this isn’t controversial, as when an officer takes a hair sample with the arrestee’s consent, or when the officer obtains a search warrant to draw the arrestee’s blood.

But I recently had an interesting email exchange about a practice that may be controversial, namely, the taking of biological material as part of a search incident to arrest. Our appellate courts have suggested that the authority to obtain biological material incident to arrest is quite broad. For example, in State v. Steen, 352 N.C. 227 (2000), the court said that it had “approved warrantless seizures of hair and saliva samples from a defendant incident to his arrest,” and “upon the [apparently separate] basis of the defendant’s being in police custody.”

But I am not sure that Steen — a rape and murder case — should be read to suggest that hair and saliva samples can be taken from any and all arrestees. What would be the basis for taking samples from a defendant arrested for a motor vehicle crime, or for tax evasion, or for some other offense for which biological evidence is extremely unlikely to be relevant? The search incident to arrest doctrine is designed to enable officers to find weapons and to prevent the destruction of evidence. Taking a hair sample doesn’t help find weapons, and of all the evidence a defendant can’t destroy, his own DNA is at the top of the list. One commentator puts it as follows:

[I]t may be appropriate to ask whether procedures of this type should be deemed lawful merely because the subject was in lawful custody, or whether instead such . . . undertakings should not also require some additional showing. In the main, the relevant cases are not helpful on this issue; generally, it may be said that although they do not expressly assert a requirement of probable cause that the procedure will produce evidence of a crime, such probable cause was in fact present. But even if courts are not prepared to require a showing of probable cause for search above and beyond the probable cause for the preceding arrest, it is to be doubted that procedures of the type [at issue] would be upheld in a case where there is no rational basis for arguing that the objective was to find evidence of the crime for which the person was in custody.

3 Wayne R. LaFave, Search and Seizure § 5.3(c) (4th ed. 2004). Given the Supreme Court’s recent narrowing of the search incident to arrest doctrine in Arizona v. Gant, I tend to agree that Steen and the other cases in the same vein, such as State v. Thomas, 329 N.C. 423 (1991), and State v. Cobb, 295 N.C. 1 (1978), do not amount to carte blanche to take DNA from arrestees. Of course, H1403 would provide carte blanche for felony arrestees, if it passes.