Dna Collection Acts and the Fourth Amendment: a Call for Legislative Reform in Georgia to Implement Collection of Arrestees' Dna

• Publication year: 2016

DNA Collection Acts and the Fourth Amendment: A Call for Legislative Reform in Georgia to Implement Collection of Arrestees' DNA

M. Binford Griffin

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DNA COLLECTION ACTS AND THE FOURTH AMENDMENT: A CALL FOR LEGISLATIVE REFORM IN GEORGIA TO IMPLEMENT COLLECTION OF ARRESTEES' DNA

M. Binford Griffin^*

Introduction

In Maryland v. King, the Supreme Court upheld the constitutionality of Maryland's DNA Collection Act (the Act),¹ which permits the warrantless collection of deoxyribonucleic acid (DNA) from arrestees who have not yet been convicted.² In the King decision, the Court was called upon to determine whether law enforcement's taking and analyzing an arrestee's DNA were searches or seizures under the Fourth Amendment.³ The Court combined the two separate Fourth Amendment issues of collecting an arrestee's DNA with a buccal swab⁴ and analyzing the DNA in the Federal Bureau of Investigation's (FBI's) Combined DNA Index System ("CODIS").⁵ While the Court's opinion analyzes only Maryland law,

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the implications of the holding are national.⁶ Other state legislatures with similar arrestee DNA collection laws must conform their respective statutes with the specific factors enumerated in King to remain constitutional.⁷

Georgia's current DNA collection law limits collection to convicted felons,⁸ but should be extended to include arrestees as a result of the Maryland v. King holding.⁹ In applying a reasonableness balancing test, the Court held in Maryland v. King that the government's interests in promoting safety and identifying arrested individuals outweighed the privacy interests of the arrestee, thus making collection of DNA from arrested individuals a reasonable search under the Fourth Amendment. ¹⁰ Weighing against the government interests, the Court evaluated the Act's individual privacy protections, noting that the Act limited the collection to those arrested for violent felonies, expressly limited the scope of genetic information that police could obtain from arrestees, and provided procedures for automatic expungement.¹¹ Georgia's current statute regarding DNA collection does not include strict limits on these issues, except to leave the procedures for collecting and

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disseminating the genetic information to the judgment of the Division of Forensic Sciences of the Georgia Bureau of Investigations.¹² Out of the important factors to the Court, Georgia's proposed legislation only addresses the types of serious offenses that would trigger DNA collection upon arrest.¹³ Contrasting Maryland's statute, Georgia's proposed statute allows DNA collection from individuals arrested for "serious offenses,"¹⁴ does not prohibit familial searches, and requires action by the arrestee to expunge his DNA profile, which the Supreme Court could deem too broad and unspecific.¹⁵ Federal law limits CODIS database access to states that carefully control privacy issues in DNA collection protocol;¹⁶ so without further restrictions, Georgia's lenient regulations could cause the federal government to deny Georgia continued CODIS privileges.

This Note compares Maryland's DNA Collection Act to Georgia's statutory equivalent, focusing on the factors established in Maryland v. King. Part I describes what DNA is and how law enforcement uses DNA information.¹⁷ It further details how DNA collection fits into current Fourth Amendment law and its exceptions as well as the problems with Georgia's DNA collection statute based on the King decision.¹⁸ Part II compares the decision in King and the foundational Act behind it with leading cases on DNA from Georgia and Georgia's proposed DNA Collection Act.¹⁹ Part II also discusses,

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through exposure of the shortcomings of Georgia's proposed DNA collection Act, why reform is necessary. ²⁰ Part III proposes a commission to regulate Georgia's DNA collection laws as well as specific changes that must be made to Georgia's proposed DNA collection Act before it is passed.²¹

I. DNA Collection and the Law

A. DNA: What Is It And How Does Law Enforcement Use It?

DNA is genetic material used to identify individuals based on the specific genome sequences contained within each cell of the body.²² The type of DNA typically used to identify an individual is contained in samples of body fluids, skin cells, bones, or hair follicles.²³ Within the DNA molecule, the genetic locations used only for identification purposes are referred to as the CODIS 13 or the CODIS Core Loci.²⁴

DNA technology has been very useful to law enforcement through its "unparalleled ability both to exonerate the wrongly convicted and to identify the guilty."²⁵ DNA technology "has the potential to significantly improve both the criminal justice system and police investigative practices."²⁶ DNA has become a powerful tool for law enforcement through the implementation and use of DNA databases nationwide.²⁷ In response to congressional passage of the DNA

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Identification Act of 1994,²⁸ the FBI created a national system for maintaining and storing DNA profiles of certain individuals in collaboration with state and local laboratories. ²⁹ The DNA Identification Act of 1994 established requirements for federal, state, and local law enforcement participation in the national program, including limiting the classes of individuals from whom DNA is collected,³⁰ laboratory qualifications and standards,³¹ procedures to expunge samples,³² and limiting collection to "DNA identification records."³³ Because of the strict compliance requirements of the national database, some states and localities have created their own—largely unregulated—"offline" DNA databases with samples taken from anyone and everyone encountering law enforcement, including crime victims and witnesses.³⁴

Scholars disagree on the potential impact of implementing a national DNA database³⁵ and many arguments focus on the negative

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effects of expanding the databases to include arrestees.³⁶ Yet the most troublesome aspect of DNA collection laws is the growing number of unregulated databanks, which will continue to increase unless and until legally restricted.³⁷

B. The Fourth Amendment, Reasonableness Balancing, And DNA Collection

The Fourth Amendment protects individuals from unreasonable searches and seizures by imposing a requirement for probable cause to issue a warrant.³⁸ Over time, the rules requiring probable cause and warrants have amalgamated with a "form of reasonableness balancing" to determine whether a search was justified under the Fourth Amendment.³⁹ To discern what is reasonable, the Court

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balances the interests of the government against the privacy interests of the individual and degree of the search's intrusiveness.⁴⁰ The Court measures an individual's privacy interests through the relevant facts and circumstances of the situation to establish whether that individual had a reasonable expectation of privacy in the target of the search.⁴¹ If the government interest outweighs the individual interest, the Supreme Court considers the search reasonable.⁴²

Despite the presumption that "reasonableness generally requires a warrant," the Supreme Court has excused warrantless searches under certain circumstances.⁴³ In some circumstances, the Court has simply relaxed the need for a warrant based on reduced expectations of privacy.⁴⁴ "Special needs" searches are also considered an exception to the warrant requirement.⁴⁵ The Court has used the special needs

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exception to uphold suspicionless drug testing of railway workers,⁴⁶ high school students involved in extracurricular activities,⁴⁷ and Treasury employees;⁴⁸ but government interests were not strong enough to apply the exception to political candidates.⁴⁹ The Court has also upheld searches of public school students and their belongings, which lacked individualized suspicion,⁵⁰ illegal immigrants crossing at border checkpoints,⁵¹ and vehicles stopped during roadblocks to discover drunk driving⁵² —but not to uncover drugs because the primary purpose of the search was to discover criminal activity.⁵³ With the King decision, "reasonableness" has moved to the forefront of the special needs exception's application to Fourth Amendment jurisprudence.⁵⁴

The Supreme Court applied this "reasonableness balancing" in Maryland v. King by comparing the government's need to properly identify arrestees, with the arrestee's right to privacy in light of the minimally invasive nature of the buccal swab. ⁵⁵ The Court determined that the legitimate government interest to protect was "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."⁵⁶ The Court weighed this government interest against the

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arrestee's reduced expectation of privacy due to his relationship with the state, leading the Court to conclude that both taking and analyzing King's DNA were reasonable.⁵⁷

The Supreme Court held the Maryland DNA Collection Act constitutional because it authorizes DNA collection from individuals arrested for violent crimes⁵⁸ and the DNA is not entered into the CODIS database until after arraignment.⁵⁹ Further, DNA samples are destroyed if the individual is never convicted or is pardoned,⁶⁰ and there are limits on the type of genetic information included in a DNA profile⁶¹ and how it may be used.⁶² The Maryland v. King factors are

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foundational requirements for a state DNA collection statute to be constitutional and Georgia's proposed statute does not include these factors.⁶³

C. Problems With Georgia's Current Statute

Georgia's DNA collection statute begins in O.C.G.A. § 35-3-160, which allows DNA collection from convicted felons.⁶⁴ In February 2013 and again in February 2015, members of the Georgia Senate proposed a bill to expand the statute to include arrestees, but despite the King decision, the Georgia legislature has not yet passed a bill on the topic.⁶⁵ Georgia's current...