On July 15, 2010, Governor Beverly Purdue signed into law the DNA Database Act of 2010 making North Carolina the 24th state to authorize taking DNA samples from arrestees. The change has not been without debate from various civil rights and constitutional advocates. So why collect DNA, and why collect DNA from arrestees? All fifty states and the federal government authorize the collection of DNA from individuals in the criminal justice system.[1] The various state databases are linked together to form a single reference called the Combined DNA Index System (CODIS). Through the use of DNA profiling, law enforcement is able to conclusively match suspects with crime scene evidence, as well as exclude innocent people from suspicion. However, the collection of biological material at a crime scene does little good unless a database sample exists that can be matched for a positive identification. As a result, many states have expanded the number of “qualifying offenses’ to include nonviolent offenses, misdemeanants, juvenile offenders, and arrestees in order to increase the number of records available for comparison.[2]
The study of DNA has proven to be advantageous for the police. DNA analysis is capable of revealing a range of information about a person including physical attributes, genetic mutations, ancestry, and disease potential. Some researchers assert that human behaviors such as aggression, sexual orientation, criminality, and drug addiction can be discerned by examining the human genome.[3] Law enforcement practitioners developed several novel techniques to take advantage of the opportunities provided by DNA profiling such as DNA Dragnets, Familial Searching, or Phenotype DNA profiling. Arguably, these practices cause privacy concerns; however these practices have also helped police solve serious crimes.
The courts agree that the taking of DNA from a person, by either a buccal swab or blood sample, constitutes a search, and must be reasonable to be authorized under the Fourth Amendment. Furthermore, the Court determined in Skinner v. Railway Labor Executives’ Association, if biological specimens are taken, two searches occur – the first in taking the sample and the second in analyzing the substance. 489 U.S. 602, 616 (1989). Both must be reasonable. To justify a search under the Fourth Amendment, the state is required to obtain a warrant by providing probable cause of a crime or demonstrate that some exception authorizing a warrantless search exists. States have utilized two exceptions to justify the collection of DNA – the “special needs” test or the “totality of the circumstance” test. The Court first articulated a “special needs” test in New Jersey v. T.L.O,. 469 U.S. 325, 341 (1985). To qualify for this exception, the state must articulate a legitimate public interest other than general law enforcement. Based upon this justification the courts have upheld the constitutionality of school searches, searches of public employees or probationers, and limited drug testing. Justifying the collection of DNA, thestate has a “special need” to identify criminals and deter future criminality.
Conversely, most courts justify the collection of DNA based upon the “totality of the circumstances” test. Banks v. United States, 490 F.3d 1178, 1183 (10th Cir. 2007). If the state intends to use DNA to solve “cold cases,” that purpose is considered to be a law enforcement function, so it would not be authorized under the “special need” exception. Haskell v. Brown, 677 F.Supp.2d 1187, 1193 (N.D.Cal. 2009). The 10th Circuit, in Banks noted that “the Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and District of Columbia Circuits apply a reasonableness test informed by the totality of the circumstances.” To apply this test, courts must balance the intrusion of DNA profiling on the individual’s privacy interest compared to the significance of the public interest supported by the practice.
So how will North Carolina courts rule if they are faced with this legal challenge? According to John Maddux, the primary factor is how the court characterizes the samples.[4] If the court perceived the sample as personal property to which the person had a strong privacy interest, then taking DNA from an innocent person violates their 4th Amendment protections. If the court perceives the sample as a method of identifying a person similar to fingerprints, then it should be allowed. How North Carolina courts will rule will depend upon this interpretation and distinction?
[1] Henry T. Greely et al.,
Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin, 34 J.L. Med. & Ethics 248, 250 (2006).
[2] Sonia M. Suter, All in the Family: Privacy and DNA Familial Searching 23 Harv. J.L. & Tech. 309, 316 (2010).
[3] Id.
[4] John Maddux, Arresting Development: A Call for North Carolina to Expand Its Forensic Database by Collecting DNA from Felony Arrestees. 32 Campbell L. Rev. 103, 116 (2009).
- Charles Lifford, Class of 2013
