Implications of United States v. Jones on DNA collection from arrestees: a trespass prohibited by the Fourth Amendment?

Author:Romero, Angelique
  1. INTRODUCTION

    Alonzo Jay King was arrested in Maryland on assault charges, and pursuant to state statute police collected a DNA sample from King on the day of his arrest and entered the information into a database. (1) Eventually, King was found guilty of one misdemeanor count of second degree assault. (2) But his trouble with the law did not end there; one month later he was indicted for an unsolved rape case, which had occurred six years earlier and where the police were never able to identify the attacker. (3) The only evidence to support the indictment was a hit in a DNA database from the DNA sample that had been collected on the day of his arrest for the unrelated assault charges. Without the DNA sample, there was nothing to link King to the rape crime. (4) Ultimately, King was sentenced to life in prison without parole. (5) King appealed his conviction and the Maryland Court of Appeals, contrary to other courts across the country, found that this DNA collection from an arrestee was unconstitutional. (6) This decision further emphasized the disagreement among courts over the issue. (7)

    The United States Court of Appeals for the Ninth Circuit and the United States Court of Appeals for the Third Circuit have ruled on this issue, as well as several district courts and state appellate courts around the country, and their rulings are conflicting. (8) Yet, the debate over whether the government can collect DNA from a person who has been arrested for a felony but has not yet been convicted, will finally be resolved by the Supreme Court of the United States in the near future. (9) The Supreme Court has hinted that it intends to find that this practice does not violate any constitutional rights. (10)

    However, based on the Court's recent opinion in United States v. Jones, the reasoning used to determine if a practice is a violation of Fourth Amendments rights has become even more blurred. (11) Although previous cases have used the reasonable expectation of privacy test to make this determination, the Court in Jones chose to use common law trespass to find that the planting of a global positioning system ("GPS") on a suspect's car was a constitutional violation. (12) Interestingly, the Court did not replace the reasonable expectation of privacy test with the use of trespass theory, but instead, decided that the reasonable expectation of privacy is a subsequent test after the trespass theory. (13)

    This comment discusses the constitutionality of warrantless DNA collection from arrestees, and proposes an analysis that the Supreme Court should use when deciding on this issue to find that this practice violates the Fourth Amendment. Part II of this comment discusses the general development of DNA collection laws, how the laws have expanded to include persons that have been arrested but not convicted of certain crimes, and the procedures used to collect the DNA samples. (14) In addition, Part II includes a survey of the conflicting decisions by courts across the country and demonstrates the disagreement over the constitutionality of this particular practice. (15) Part II also argues that DNA collection and fingerprinting are not analogous in particular circumstances. (16) Part III summarizes the evolution of Fourth Amendment jurisprudence, and how it is shifting back to the trespass interpretation originally used by the courts. (17) Part III also analyzes how the collection of DNA is a search under the Fourth Amendment. (18) In Part IV, this comment discusses how the Supreme Court should handle the issue of warrantless DNA collection from arrestees and proposes that the trespass test used most recently by the Supreme Court in Jones should also be applied to this issue to find that the collection of DNA is a violation of the Fourth Amendment. (19)

  2. BACKGROUND

    1. EXPANSION OF DNA COLLECTION PRACTICES

      As technology has advanced, law enforcement officials and lawmakers have recognized the potential advantages of having a database of DNA samples in order to solve crimes. (20) Consequently, in 1990, the federal government began creating the Combined DNA Index System ("CODIS"), which is a centralized database that is linked to each individual state's DNA database. (21) The DNA Identification Act of 1994 gave the Federal Bureau of Investigation ("FBI") the authority to create and use a national DNA database. (22) In 2000, Congress passed a law which allowed the collection of DNA from individuals who had been convicted of certain crimes. (23) In recent years, the federal government and many states have expanded the types of individuals from whom DNA samples can be collected. (24) The categories of persons subject to DNA collection have grown from those convicted of felonies to those persons who have merely been arrested. (25) The DNA Fingerprint Act of 2005, which was a part of the popular Violence Against Women and Department of Justice Reauthorization Act of 2005, amended the previous law allowing the federal government to collect a DNA sample not only from a person who has been convicted, but also from a person who has merely been arrested. (26)

      The states have also expanded their DNA collection laws. (27) Today, every state has authorized the collection of DNA samples from persons who have been convicted of felonies. (28) Moreover, in the past three years, the number of states that allow the collection of DNA samples from arrestees has nearly doubled. (29) Approximately twenty-four states, along with the federal government, authorize the collection of DNA samples from individuals who have only been arrested for a crime. (30) Several rationales are cited in support of this practice. (31) Legislators contend that DNA collection has helped solve cases, exonerate innocently convicted individuals, and is equivalent to modern fingerprinting. (32) However, the benefits of this practice are questionable. (33) For example, in 2011, Maryland collected over 10,000 DNA samples from individuals that had been arrested even before they were ever convicted. (34) Less than ten of these samples collected have resulted in a conviction. (35)

      The collection of DNA typically involves a buccal or saliva swab of the arrestee's cheeks. (36) In the past, DNA samples could only be collected by taking blood from the person; however, due to technological advances, blood sampling is no longer the most commonly used procedure. (37) A saliva swab of a person's cheeks requires the insertion of a device into the person's mouth and the scraping of the inner check to collect cells. (38) Although, the saliva swab procedure is less invasive than the blood sample, it is still not a completely invasive free procedure, because it requires a foreign object to be inserted into the mouth and the scraping of the inside of the cheeks. (39) Once the sample is collected, it is then sent to an FBI laboratory for processing and analysis. (40)

    2. COURTS SPLIT OVER CONSTITUTIONALITY

      Courts throughout the country have varying opinions about the constitutionality of DNA collection from arrestees who have not yet been convicted of a crime. In 2006, a Minnesota appellate court was one of the first courts to address the issue. (41) In this case, the Minnesota Court of Appeals concluded that probable cause to arrest a person was not equivalent to the necessary probable cause for taking that person's biological specimen. (42) Moreover, the "privacy interest of a person who has been charged with a criminal offense, but who has not been convicted, is not outweighed by the state's interest in taking a biological specimen from the person for the purpose of DNA analysis...." (43) The court of appeals reasoned that arrestees do not have a reduced expectation of privacy, unlike persons who have already been convicted of a crime. (44) In the end, the court decided that the Minnesota statute was a violation of the Fourth Amendment. (45)

      In California, an appellate court also held that the collection of DNA from felony arrestees violated their Fourth Amendment rights. (46) According to this court, the California statute allows for a search of a person without a warrant and without any suspicion that the person has committed any other crime other than the one for which the person was arrested. (47) Because an arrestee has privacy rights more like an ordinary citizen than a prisoner or convicted felon, the interest of the government in DNA is problematic. (48) Although the government has an interest in solving crimes, a search cannot be justified by what turns up as a result of the search. (49) Therefore, the court found that the provision of the Act, which required arrestees to give DNA samples, was unconstitutional. (50)

      A more recent example occurred in 2012 when the Court of Appeals of Maryland held that the provision of the Maryland statute, (51) which authorized the collection of DNA samples from arrestees, violated the Fourth Amendment. (52) The Maryland court, similar to the court in Minnesota, reasoned that "King's expectation of privacy is greater than the State's purported interest" (53) in resolving other crimes and agreed that the probable cause to arrest a person is not sufficient probable cause to obtain a DNA sample without a warrant. (54)

      Other courts, however, have made conflicting findings to the ones in Minnesota and Maryland. For instance, the Ninth Circuit, in Haskell v. Harris, (55) ruled that California's DNA and Forensic Identification Data Base and Data Bank Act of 199856 did not violate the Fourth Amendment. (57) According to the court of appeals, the DNA samples are "substantially indistinguishable from traditional fingerprinting" and because fingerprinting has been found to be constitutional, DNA sampling does not present any privacy issues for the arrestees. (58) The court evaluated the issue using a totality of the circumstances test in order to balance the arrestee's privacy rights and the state's need for the DNA samples. (59)

      The Third Circuit...

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