Drawing the Line: Dna Databasing at Arrest and Sample Expungement
| Publication year | 2013 |
Drawing the Line: DNA Databasing at Arrest and Sample Expungement
Jesika Wehunt
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New technologies test the judicial conscience. On the one hand, they hold out the promise of more effective law enforcement, and the hope that we will be delivered from the scourge of crime. On the other hand, they often achieve these ends by intruding, in ways never before imaginable, into the realms protected by the Fourth Amendment.
—Judge Kozinski, United States Court of Appeals, Ninth Circuit1
In recent years, news headlines across the country have been splashed with stories of cases considered cold for decades until a new sample of DNA revealed who committed the crime.2 Not only is DNA increasingly used to identify the culprit responsible for a crime; many innocent people have been exonerated thanks to new advances in DNA evidence.3 As technology advances, it promises to reveal
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even more information about individuals from their DNA in the future.4 Given the growing number of real-world, high-profile cases solved with DNA evidence, fictional television increasingly features shows that depict the use of DNA to solve crimes.5 Consequently, the public has greater awareness of how DNA works, and juries demand DNA evidence from prosecutors in exchange for a conviction.6
In response to this demand for DNA evidence, all fifty states and the federal government allow, by statute, both collection of DNA from select individuals and storage of DNA in databases.7 Traditionally, those convicted of felonies were required to submit DNA samples; however, more recently, the federal statute and some state statutes have been amended so that those who have been
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arrested are also required to submit samples.8 In the majority of states that take DNA samples upon arrest, DNA samples and profiles of individuals who are not ultimately convicted are not automatically destroyed; rather, the exonerated individuals must go through a lengthy process of requesting an expungement.9
While opponents have brought many constitutional challenges to the collection and storage of DNA under the Fourth Amendment, most courts that have reviewed the state statutes requiring DNA samples from convicted persons have found them constitutional.10 In August 2011, however, the California Court of Appeals reviewed the jurisprudence surrounding the constitutionality of DNA collection at arrest in People v. Buza and found the California statute for DNA collection at arrest, Proposition 69, unconstitutional.11
This Note addresses the constitutionality of the collection and retention of DNA samples from individuals at arrest and proposes a statutory scheme for utilizing DNA evidence while protecting arrestees' privacy rights by requiring judicial probable cause and placing the burden of expungement on the state. First, Part I provides
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a brief history of the use of DNA and the statutory schemes that mandate the sampling and retention of DNA.12 Next, Part II analyzes the constitutionality of DNA sampling at arrest—as well as the subsequent retention of DNA samples and profiles of citizens who are not convicted—under the Fourth Amendment and in light of the 2011 California Court of Appeals decision, People v. Buza.13 Finally, based on the analysis used by the California Court of Appeals in Buza, Part III proposes that DNA profiles and samples should be collected upon arrest of a suspect only with a judicial finding of probable cause. If collected, the sample should be destroyed upon immediate acquittal—instead of the current popular scheme used by most states and the federal government that requires the individual to request expungement and does not differentiate the type of probable cause required for sample collection.14
A. The Foundations Of DNA Use
The fathers of DNA, James Watson and Francis Crick, declared on February 28, 1953, that they "had found the secret of life."15 In fact, they had uncovered the double-helix structure of deoxyribonucleic acid (DNA) and subsequently made their research public, continuing to research and publish their findings.16
DNA is the foundation on which an individual's entire genetic makeup stands.17 A person's DNA is like a genetic fingerprint; the DNA that is found in a person's blood is identical to the DNA found
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in his skin cells.18 In fact, DNA is identical in every cell of a person's body and is unique to each individual.19 The four "bases" of DNA are Cytosine (C), Guanine (G), Thymine (T), and Adenine (A), and the sequencing and order of these "bases" are what make a person's unique DNA pattern.20 "More than ninety-seven percent of DNA is identical between all people," but the remaining base sequences, called polymorphic loci or "junk DNA," are what make each individual unique.21 These junk DNA are analyzed to identify suspects in DNA sampling.22
DNA sampling for forensic identification purposes first occurred in Great Britain in the 1980s, more than thirty years after the discovery of DNA.23 Soon after this discovery of "DNA fingerprinting,"24 the United States had its first conviction based on DNA technology in 1987.25 DNA provided an immediate way to identify offenders and quickly link them to a crime more efficiently than other typical methods, such as fingerprinting and mugshots.26 DNA technology became the method of choice for forensic examination for many reasons: it has "high discrimination power";27
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the DNA of an individual remains the same for his entire lifetime;28 it is inherited from his parents;29 DNA samples remain stable over time;30 and it is easily obtained from the smallest of samples of biological materials.31 Today, DNA fingerprinting has become the "gold standard" of forensic analysis and is widely accepted by courts.32
B. The DNA Sampling And Matching Process
1. Collecting the DNA Samples
In an investigation, DNA must first be collected at the crime scene.33 "Blood, semen, saliva and other types of bodily fluid or tissue are the most common types of biological evidence collected at crime scenes."34 The unique DNA sequences from the collected
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evidence samples are isolated and prepared to be cross-referenced with the DNA of potential suspects by lab technicians.35
Potential suspects may voluntarily provide a comparison sample, or the collection of a comparison sample may be mandated by statute.36 Samples can be taken voluntarily from a mass population of potential suspects in a process that is referred to as "DNA dragnets."37 State or federal statutes can also require the submission of a DNA sample under certain conditions.38 When DNA collection was in its earliest stages, "only people . . . convicted of serious sexual crimes" were required to submit DNA samples.39 As the popularity of DNA testing grew, "many states began collecting DNA from murderers, then other violent felons, and, most recently, all felons and even some misdemeanants."40 Since a 2006 amendment to the DNA Analysis Backlog Elimination Act, the federal government has allowed collection of arrestee DNA samples merely upon arrest, prior to any conviction.41 Statutes in twenty-five states also require suspects to provide DNA samples upon arrest.42
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The sampling, whether voluntary or mandated by statute, is usually a non-invasive procedure, such as buccal swabbing.43 Once the DNA sample is taken, a unique DNA "fingerprint" or "profile" of the individual is created and used only for identification purposes.44 A DNA profile is not the sample, which is the actual physical specimen originally taken from the individual, but rather a simple series of numbers that represent the DNA sequence and do not share any information about a person's individual traits.45
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2. Storage and Maintenance of DNA Profiles
Once the DNA profile is created from a collected sample, it is of little value unless it can be catalogued and compared with other profiles from crime scenes. As the amount of DNA used in criminal cases has grown, the "need to house, maintain, and recall the DNA profiles of offenders for use in solving other crimes" on a larger scale has also grown exponentially.46 "All fifty states have passed legislative provisions authorizing the use of DNA databases to store the genetic profiles of convicted criminals."47 Additionally, recognizing the need for an overarching profile organization system, the Federal Bureau of Investigation (FBI) created the Combined DNA Index System (CODIS).48
CODIS "coordinate[s] the various national, state, and local DNA databases in a centralized system" that allows for the exchange of DNA information nationwide.49 Following the creation of CODIS in 1994, "the DNA Identification Act ('DNA Act') authorized the FBI
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to create the National DNA Index System ('NDIS')," which allows sharing profile information between federal and state DNA databases, and provides states with financial support to create or improve their existing state DNA databases.50 As of March 2013, this multi-tiered system of local, state, and national databases contains more than ten million offender profiles, more than 1.3 million arrestee profiles, and almost half a million forensic profiles.51
"As soon as a DNA profile is uploaded, it is compared to crime scene samples in CODIS; new crime scene samples are searched against the uploaded profile, and a search of the entire system is performed once each week."52 If there is a match, known as a "hit," between a suspect profile in the database and a sample from a crime scene, "it is confirmed with a new analysis of the profile," and the "submitting laboratory is notified and can notify the appropriate law enforcement agency."53 The number of crimes assisted by CODIS is
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staggering—"[a]s of March 2013, CODIS has produced over 205,700 hits assisting in more than...
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