DNA Collection

An interesting article appeared yesterday in the New York Times. You can read it here, but the gist of it is that the federal government and about 15 states are now collecting DNA from people who are charged with certain crimes, usually felonies, even if the individuals are not convicted. As the article observes, this raises some interesting legal questions, including whether the routine seizure of DNA from defendants who are not convicted violates the Fourth Amendment. There’s a Congressional Research Service report on this issue, available here, which concludes as follows:

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.

North Carolina law currently provides for the routine collection of DNA only of convicted defendants. See G.S. 15A-266.4 (providing for the collection of DNA upon conviction of any felony, assault on a handicapped person, stalking, or sexual battery). As far as I can tell, the statute has never been challenged, and challenges to similar statutes in other jurisdictions have generally been rejected. Courts uphold DNA collection from convicted defendants either on a “special needs” rationale or on a Terry-esque theory that the minimal intrusion of a blood draw is justified by the substantial benefit to law enforcement in maintaining a DNA database. See Wayne R. LaFave, Search and Seizure, s. 5.4(c) (4th ed. 2004).

Soon, however, North Carolina may jump on the bandwagon of collecting DNA from people who are charged but not convicted. HB 1403 would require the collection of a DNA sample upon arrest; you can see the current version of the bill here. (While we’re on the subject of DNA and the General Assembly, HB 1190 would alter the rules for retaining and preserving DNA and other biological evidence; it makes some substantial changes and clarifications and is probably worth a gander, especially as it has bipartisan sponsorship. You can see it here.)

This sets up a possible Fourth Amendment showdown, but the conclusion of the Congressional Research Service isn’t the only plausible view. Consider the fact that North Carolina, like many other states, permits the collection of other identifying information from people who have been charged but not convicted. For example, G.S. 15A-502 provides that any arrestee may be fingerprinted and photographed, even if arrested for a misdemeanor, regardless of the disposition of the case. And it requires that defendants who are charged with felonies shall be photographed and fingerprinted, again, regardless of disposition. I’m not aware of any great controversy about fingerprinting, and I can imagine a court concluding that taking DNA (or “genetic fingerprinting) isn’t really any different.

What do you think? Leave a comment to weigh in.