Cite As: Deborah F. Barfield, Comment, DNA Fingerprinting - Justifying the Special Need for the Fourth Amendment's Intrusion into the Zone of Privacy, 6 RICH. J.L. & TECH. 27, (Spring 2000) <http://www.richmond.edu/jolt/v6i5/note2.html>.[**]
A. A Codified Intrusion into the Human Body
1. Legal Authorization for DNA Sampling
2. Federal Efforts to Integrate DNA Data Banks
3. Mechanics of DNA Sampling
4. Legal Impact of DNA Sampling
5. A Threat to Fourth Amendment Protection
B. History of Supreme Court Rulings on Bodily Intrusion
A. Identifying the Individual
B. Distinguishing the Intrusions
C. Defining the Scope of the Individual's Reasonable Expectation of Privacy
D. Determining the Government's Interest
E. Applying the Appropriate Standard
1. Expanding the "Special Needs" Exception into the Criminal Context
2. Defining the Government's "Special Need" Outside of Law Enforcement
3. Comparing the Circuit Court Rulings
A. The Problem with the "Special Needs" Standard in the Criminal Context
B. A Plausible "Special Need" Within the Criminal Context: Protecting Individual Liberty
C. Conclusion
{1} The Fourth Amendment prohibits
the government from conducting unreasonable searches and seizures.[1] When
claims arise against the government's Fourth Amendment transgressions,
usually those claims turn on interpretation of the term "reasonable."
Traditionally, a search and seizure conducted under the authority
of a judicial warrant for "probable cause" is unquestionably
reasonable.[2] In some, albeit very limited, types of searches
reasonableness is met with at least "individualized suspicion."[3] When
searches intrude into the human body, however, they implicate
a person's most deep-rooted expectation of privacy - the right
to be left alone.[4]
{2} This comment explores a three-pronged
inquiry which addresses how law enforcement authorities come to
possess DNA samples from certain individuals. This inquiry includes
the following three stages of analysis. First, does DNA sampling
constitute a search and seizure within the meaning of the Fourth
Amendment?[5] Second, do persons convicted of serious crimes
retain a reasonable expectation of privacy?[6] Third, and finally,
if DNA sampling does constitute a search and seizure within the
meaning of the Fourth Amendment, is it unreasonable? That is,
does the government's interest in acquiring DNA information from
persons convicted of serious crimes outweigh its invasion of those
persons' expectation of privacy?[7]
{3} This expectation of privacy is a "fundamental" right.
Fundamental rights are those that exist apart from any constitutional
provision that recognizes them. They are "implicit in the
concept of ordered liberty."[8] The United States Supreme
Court recognizes personal privacy as a fundamental right guaranteed
by the Fourth Amendment.[9] However, the exercise of fundamental rights
is not absolute, and governmental infringement can occur. Ordinarily,
when it does, it triggers the "strict scrutiny" standard
of judicial review. Under strict scrutiny, the government must
justify its actions with a "compelling" interest and
demonstrate that the action is "narrowly tailored" to
effectuate that interest.[10]
{4} Every state requires certain criminals
to submit DNA samples for inclusion into data banks.[11]
At the least, these statutes target convicted offenders of sexually-related
crimes.[12]
Such crimes include rape, sodomy, and molestation. However, states
such as Delaware and Georgia, are careful to address all possible
sex crimes in their statutory language.[13] Some statutes cast
still a wider net. For example, Minnesota's statute, with the
broadest approach, authorizes the creation of "systems for
identification of criminals" with no further specifications
as to which crimes to include.[14] At least six states qualify anyone convicted
of a felony.[15] Arkansas requires all "repeat offenders"
to submit to sampling.[16] The Wisconsin statute, without reference
to any particular crime, requires DNA samples from everyone who
is incarcerated, on probation, paroled, or found not guilty by
reason of mental disease.[17]
{5} States commonly target other violent
crimes as well, particularly murder.[18] However, the statutory
interpretation of a "violent" crime is not always clear.[19]
In contrast, some state statutes explicitly define the "violent"
crimes that qualify perpetrators for DNA sampling.[20] North Carolina, for
example, codifies the most specific and extensive list of crimes;[21]
whereas, Nebraska's and Pennsylvania's statutes explicitly allow
their legislatures to revisit the list of qualifying crimes.[22]
{6} Additionally, inconsistency exists
as to when individuals fall within the reach of the sampling requirement.
While most states require conviction at the outset of any procedure
to acquire a DNA sample, not all states make DNA sampling an immediate
result of conviction. At least three states - Louisiana, Mississippi
and Kentucky - require DNA samples from individuals who are merely
arrested for sexual felony offenses.[23] In contrast, Idaho
requires the prosecuting attorney to show that early collection
of the individual's DNA is in the best interest of justice before
the convicted person must submit to DNA sampling.[24] Not surprisingly,
most states extend the DNA sampling requirement to juvenile offenders,
as well as to probationers and parolees.[25] In fact, some states
make it a condition of parole or release to submit a biological
sample.[26]
{7} In 1994, Congress passed the DNA
Identification Act ("the Act").[27] The Act authorizes
the Attorney General to grant money to the states to develop DNA
collection systems.[28] The grants are contingent on the states collecting,
at the minimum, DNA from felony sexual offenders.[29] These state databases
will contribute to a national Combined DNA Identification System
("CODIS").[30] CODIS, operating since 1997, is under the
direction of the National Crime Information Center of the Federal
Bureau of Investigation ("FBI").[31] While CODIS represents
a valuable resource, the integration of the states' data with
CODIS is problematic, due to the aforementioned inconsistencies
among the states, as well as to the authority of the state to
use its discretion as to what information it may choose to pass
along to the FBI. A bill currently before Congress seeks to authorize
CODIS' expansion.[32] The bill, if passed into law, will give the
Director of the FBI the discretion to define what offenses qualify
for inclusion in the data bank, and to set standards for analysis
and removal of the data.[33] Additionally, there is another bill which
addresses the exchange by law enforcement agencies of DNA identification
information relating to violent offenders.[34]
{8} What exactly is DNA? Deoxyribonucleic
acid ("DNA") harbors an individual's distinctive pattern
of genetic information.[35] Constructed into tightly coiled threads resembling
a helix, DNA exists in every nucleus of every cell within the
human body.[36] The function of DNA is to house all of the
necessary information to create a particular human being along
with all of her unique traits.[37] Except for identical twins and bone marrow
transplant recipients, every individual's genetic makeup is unique.[38]
The collection and analysis of DNA is often referred to as "DNA
fingerprinting" because it is second only to actual fingerprinting
in the identification of individuals.[39]
{9} Thus, forensic scientists can
analyze any particular biological specimen - such as hair, blood,
or tissue - to identify the person who is its source.[40]
This process consists of dividing a DNA sample into fragments,
which form a unique pattern, and then matching this "identity
profile" with samples from the DNA database.[41] The sample may come
from a variety of bodily fluids and tissue, each providing the
same degree of genetic information.[42]
{10} The process known as "DNA
fingerprinting" first developed in Great Britain in 1985.[43]
It is useful in establishing paternity, as well as in identifying
human remains from war or disaster.[44] In the last decade,
criminal investigation has benefitted from the advent of DNA identification.
Virginia is home to the first DNA data bank, the design of which
began in 1989.[45] So far, out of the nearly 100,000 samples
collected, criminal investigators have identified 100 suspects.[46]
Interestingly, many of those suspects were convicted of crimes
against property, rather than for crimes against persons.[47]
For example, Mark Daigle was imprisoned for burglary and theft
in Virginia, where he provided a sample of his DNA, in accordance
with Virginia's DNA collection statute.[48] That sample was used
to convict him of a rape he committed in Florida years later,
after his release for the Virginia conviction.[49]
{11} Convicting and incarcerating
otherwise unidentifiable perpetrators is not the only effective
criminal use of DNA sampling. In 1983, Calvin Johnson was sentenced
to a life sentence in Georgia for rape.[50] Sixteen years later,
he was exonerated when, through the use of DNA analysis, scientists
were unable to match his DNA sample with the biological evidence
remaining from his trial.[51] Probably the most famous case to date on
the effectiveness of DNA fingerprinting, in the context of criminal
investigation, is that of Ronald Cotton.[52] In 1984, Ronald Cotton
was arrested for the rape of two women and burglary to their respective
apartments.[53] The Alamance Superior Court in North Carolina
convicted and sentenced Cotton to a life term plus fifty-four
years for all offenses.[54] In 1995, DNA analysis revealed that Cotton
was not the assailant; rather, investigators found a match in
the state's DNA database with another convict.[55] Cotton not
only was cleared of all charges, but also received $5,000 in compensation
from the state.[56]
{12} Undoubtedly, the federal government's
model for CODIS is the extensive database functioning in Great
Britain since 1995. Great Britain seeks to include its entire
population in its database. In several high profile cases, the
British government required entire populations of the citizenry
- based on either their geographical location, race, or sex -
to submit to sampling.[57]
{13} While nothing of this nature
has yet to occur in the United States, DNA sampling has become
a routine criminal investigative tool in this country. Treating
such sampling as a "search and seizure," American courts
are interpreting the validity of statutory and regulatory requirements
for DNA sampling under a Fourth Amendment analysis. Specifically,
they determine the standard for the reasonableness of the search,
and examine the degree to which the search impinges on one's fundamental
right to an expectation of privacy.[58] Massachusetts was
the first state to rule that DNA sampling was unconstitutional;
however, the state's supreme court overturned the decision.[59]
Consequently, the American Civil Liberties Union has appealed
the decision to the United States Supreme Court.[60] The Supreme Court,
however, has not addressed this inquiry per se, although it has
ruled on issues of bodily intrusion and privacy rights of those
within the state's custody or authority.[61] Several of the circuit
courts have addressed this particular issue. An analysis of their
holdings, and a forecast for the High Court follows.
{14} In 1966, the Supreme Court held, in Schmerber v. California,[62]
that the taking of a blood sample is a search within the meaning
of the Fourth Amendment.[63] However, the Court also held that taking
a blood sample without a warrant, but in the context of an arrest
for probable cause and by commonplace medical procedures, "involves
virtually no risk, trauma, or pain" and is thus considered
a reasonable intrusion.[64] Therefore, police may, without a warrant,
seize evidence likely to disappear before they can obtain a warrant,
such as a blood sample containing alcohol.[65] Two years later, in
Terry v. Ohio,[66] the Court was willing to weigh law enforcement's
discretion in a test for reasonableness in the context of a warrantless
search - thus, establishing a guiding principle for "individualized
suspicion." The Court was careful, however, to disallow an
officer's "subjective 'good faith'" as sufficient;[67]
rather, judicial scrutiny employs an objective standard.[68]
Moreover, the scope of such warrantless searches must reasonably
relate to the circumstances which justify them.[69] More than a decade
later, the Court incorporated these "manner" and "scope"
parameters in its holding in Bell v. Wolfish.[70]
In Bell, the Court affirmed that a federal custodial facility
could conduct a visual body cavity searches on inmates for less
than probable cause,[71] and reiterated that the test for reasonableness
in such circumstances requires a balancing of the need for the
particular search against the invasion of a person's rights that
the search entails.[72] Within this balance, "[c]ourts must
consider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and
the place in which it is conducted."[73] The Bell balancing
test rests on the presumption that, while prison inmates may retain
certain constitutional rights, those rights are subject to restrictions
and limitations.[74]
{15} The factual scenarios of these
prior decisions, however, included individuals merely suspected
of criminal behavior, at most. Hudson v. Palmer[75]
broke new ground by establishing that a prisoner has no reasonable
expectation of privacy in his prison cell.[76] Still, Hudson stopped
short of drawing the same conclusion with respect to "in
person" searches. In 1987, the Court, reviewing a Wisconsin
regulation permitting a probation officer to search a probationer's
home on mere "reasonable grounds,"[77] as opposed to probable
cause or individualized suspicion, validated the regulation under
a "new principle of law."[78] Specifically, when
the state is acting as the regulator of some industry, such as
the operation of a probation system, there may be "'special
needs beyond normal law enforcement that may justify departures
from the usual warrant and probable-cause requirements."[79]
Two years later, the Court extended the "special needs"
standard to searches of the person in Skinner v. Railway Labor
Executives' Association.[80] The Skinner Court ruled that a collection
and subsequent analysis of the requisite biological samples, while
constituting a search under the Fourth Amendment, is reasonable
if justified by special needs beyond normal law enforcement.[81]
A recent application of the "special needs" analysis
exists in Vernonia School District v. Acton,[82]
where the Court upheld random drug urinalysis screening of high
school athletes as reasonable.[83] The Court found that existing drug problems
in the school were severe enough to suffice as a special need
for suspicionless searches of individuals who were role models
in the student community.[84]
{16} A recent case from the Court of Appeals for the Second Circuit
addresses the constitutionality of DNA collection, specifically
for the purpose of data banking biological information on convicted
felons. In Roe v. Marcotte,[85] the Attorney General
of Connecticut sought a court order to compel Thomas Cobb to comply
with a state statute that required him to submit a blood sample
for analysis and inclusion in Connecticut's DNA data bank.[86]
Cobb was sentenced to twenty-five years for a sexual offense conviction.
The statute at issue provides, in relevant part, --
(a) any person who (1) is convicted
of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a
or 53a-72b on or after October 1, 1994, and is sentenced to the
custody of the Commissioner of Correction or (2) has been convicted
of a violation of [the previously referenced sections] and on
October 1, 1994, is in the custody of the Commissioner of Correction
shall, prior to release from such custody, have a sample of his
blood taken for DNA . . . analysis to determine identification
characteristics specific to the person. (b) Any person convicted
of a violation of [the previously referenced sections] on or
after October 1, 1994, who is not sentenced to a term of confinement
shall, as a condition of such sentence, have a sample of his
blood taken for DNA . . . analysis to determine identification
characteristics specific to the person.[87]
{17} In the U.S. District Court of
Connecticut, Cobb argued, inter alia, that the statute
authorized an unreasonable search and seizure in violation of
the Fourth Amendment and thereby violated his right to privacy.[88]
Specifically, Cobb contested the state's authority to take evidence
from his person, with neither probable cause nor reasonable suspicion,
and to use this evidence in future criminal investigations.[89]
The state did not dispute that the intrusion was a search. Therefore,
the district court addressed the issue of whether or not this
particular type of search is reasonable.[90] The state argued that
the intrusion is minimal and justified by significant government
interests.[91] In its counterclaim, the state asked the
district court to declare the statute constitutional and to enjoin
Cobb from refusing to submit a blood sample - allowing the use
of force, if necessary.[92] The district court heard cross-motions for
summary judgment and granted the state's motion in part, declaring
the statute constitutional, and denying Cobb's motion. In its
ruling, the court relied on the rationale supplied by the Fourth
Circuit in Jones v. Murray,[93] which considered probable
cause already supplied by virtue of an individual's presence within
the criminal justice system, and considered "at least some,
if not all" of an individual's rights to privacy to be lost
upon arrest.[94]
{18} The U.S. Court of Appeals for
the Second Circuit, reviewing the lower court's grant of summary
judgment de novo, affirmed the trial court's judgment, defeating
Cobb's constitutional challenge.[95] Its rationale, however,
was different from that of the court in Jones.[96]
Rather, the Second Circuit concluded that a reasoned interpretation
of the "special needs"[97] doctrine supports
the constitutionality of the DNA statute.[98] In applying the "special
needs" standard, the court balanced the government's interests
in controlling recidivism[99] among sexual offenders, aiding in the efficiency
of criminal investigations of sex crimes, solving past and future
crimes, and deterring repeat offenders against Cobb's interest
in preventing his blood from being drawn for testing.[100]
{19} The "special needs"
test determines the "reasonableness" of searches into
the body by weighing the government's need for the evidence against
the magnitude of the intrusion on the individual.[101] Such a balancing
test is a step down from traditional strict scrutiny analysis
of government infringement on fundamental rights. In fact, should
the government prevail, the result is a diminished privacy right
for the individual. In contrast to the presentation required for
showing the "compelling interest"[102] for intrusion, under
a "special needs" analysis, the government must only
show that its interest outweighs the degree to which it impinges
on the individual's fundamental right. Put differently, instead
of proving the need for the invasion, the government must merely
disprove its severity.
{20} An analysis of these
types of statutes begins with identifying the class of individuals
to whom they apply. The Connecticut statute at issue in Marcotte
pertains to individuals who possess three qualifications. The
qualifications are that the individuals must be convicted sexual
offenders, who are incarcerated as of the statute's effective
date.[103]
Determining the characteristics of the qualifying class is important
because those characteristics bear on the degree to which members
of the class retain a reasonable expectation of privacy. The reasonableness
of a search ultimately rests on the results of balancing this
expectation against the government's interest in collecting the
DNA sample. The arguments either for, or against, DNA sampling
are more or less palpable depending on whether the "individual"
is convicted or merely accused, and to what degree the crime is
deemed "serious." A review of the relevant case law
yields an understanding of the term "serious," as applied
to both violent and nonviolent crimes.[104]
{21} DNA sampling involves two intrusions:
first, the initial extraction of the sample, and second, the subsequent
analysis of the sample.[105] The court, in Marcotte, concluded
that the Connecticut statute provides adequate safeguards to ensure
that the subsequent intrusion is minimal.[106] In reaching its
holding, the Marcotte court accepted the notion that a
subsequent chemical analysis of the sample to obtain physiological
data is a further invasion of the individual's privacy interest.
Prior to Marcotte, the Court of Appeals for the Ninth Circuit,
in Rise v. State,[107] reviewed a Colorado statute requiring convicted
murderers, sexual offenders, and conspirators of those offenses
to submit a blood sample to the state's data bank, and likened
the information derived from the blood sample to that derived
from fingerprinting.[108] The court continued the analogy with fingerprinting
in asserting that interference in an individual's privacy was
minimal because the procedures necessary for drawing blood are
no more intrusive than inking and rolling a person's fingertips.[109]
{22} Admittedly, one can argue that
providing a DNA sample to government officials is not unlike providing
a fingerprint - something which the government already possesses
for most of the individuals within its borders, and which is used
merely as a tool for ensuring proper identification.[110]
However, the capture of fingerprints and photographic images does
not involve bodily intrusions, and the information gleaned from
them is not subject to further analysis that yields information
about the individual beyond the human eye's capability of recognition.
For example, Judge Nelson, dissenting over forced extraction in
Rise, defined DNA sampling as an invasion that is not minimal.
Rather, sampling is "an intrusion of a scope fundamentally
different from the capture of visual images or fingerprints, in
which there is a minimal expectation of privacy because that information
ordinarily is held out to the public."[111]
{23} The weight of the government's
interest in procuring the DNA sample for inclusion in a database
is offset by the degree to which the individual retains a constitutionally-protected,
reasonable expectation of privacy. Based upon the fingerprint
analogy from Rise, this expectation is limited for convicted
individuals, who should not expect a greater level of privacy
than those merely accused. The latter group, nevertheless, are
required to undergo fingerprinting, regardless of whether the
investigation of the crime involves fingerprint evidence.[112]
Fingerprinting, however, is a far less intrusive search than DNA
sampling. It seems individuals would retain a greater expectation
of privacy with respect to their blood than to their fingerprints.
While no court has gone so far as to say convicted felons retain
no reasonable expectation of privacy, the Fourth and
Ninth Circuits assert that convicted felons retain, at most, a
diminished privacy right.[113]
{24} The proffered rationale for the
statute in Marcotte is that DNA data banks serve as a tool to
address recidivism because the data bank will assist in preventing
future crimes and deterring repeat offenders.[114] These are strong
reasons from a public policy standpoint, but they are weak under
constitutional scrutiny. The Supreme Court's stance on the reasonableness
of searches of a person for grounds less than individualized suspicion
does not extend to the criminal context, but stops instead at
"special needs" beyond the normal degree of law enforcement.
However, the Tenth Circuit, in Boling v. Romer,[115]
deemed the government's interest in investigating and prosecuting
unsolved and future crimes as legitimate, and asserted that DNA
sampling, like fingerprinting, is a rational means for achieving
this interest.[116]
{25} Within the criminal context,
the Supreme Court's standard for a reasonable search and seizure
is individualized suspicion. Even searches under this minimal
standard must balance the "need for the particular search
against the invasion of personal rights that the search entails"
and consider the scope, manner, justification, and place.[117]
The Connecticut statute, and others like it, take a blanket approach
to DNA sampling, regardless of the individualized suspicion standard
articulated by the Supreme Court. Moreover, by allowing the retrieval
of evidence for future use in criminal investigations, the Connecticut
statute seems to preclude the standard of probable cause.[118]
The court in Marcotte is mindful of this standard in rationalizing
the constitutionality of the statute, but it invokes another of
the High Court's standards - that articulated in Skinner,
where circumstances outside of law enforcement exist where a reasonable
search is predicated on "special needs."[119]
{26} The court in Marcotte,
while deferring to the persuasiveness of the Fourth Circuit's
ruling in Jones, based its rationale on that utilized by
the Washington Supreme Court in State v. Olivas.[120]
In Olivas, the court also upheld the constitutionality
of DNA sampling of violent offenders, but unlike the court in
Jones, the Washington State judiciary concluded that the
application of the "special needs" balancing test was
a better reasoned approach because it does not diminish the privacy
rights of convicted persons.[121] Under this test, to justify a search on
less than individualized suspicion, the government's interest
- be it the maintenance of institutional security, public safety,
or order - must be significant enough to prevail over a minimal
intrusion on an individual's privacy rights.[122] This reasoning rests
on the significance of the government's interest and scope of
the intrusion. The former consideration must be greater than the
latter disruption in order to allow for DNA sampling. The court's
holding in Marcotte reasserted the Supreme Court's declaration
that the extraction of blood is a minimal intrusion, and deferred
to the Fourth Circuit's interpretation that this assertion applied
to the DNA sampling of convicted felons, as well as to drug and
alcohol testing of railroad employees.[123] Thus, the court
in Marcotte maintains that the "special needs"
exception to the Fourth Amendment also applies to the prison setting
where concerns for institutional security, order, and discipline
restrict the constitutional protections of prisoners.[124]
{27} Making a tenuous extension, the court in Marcotte compares Connecticut's DNA sampling statute to the regulation scenario defined in Griffin. In Griffin, the Supreme Court relied on extensive research that indicated more intensive supervision of probationers reduced recidivism and concluded that "supervision" was a "special need" of the State.[125] The Griffin holding established that non-law enforcement interests can exist even within the context of the criminal justice system. Subsequently, Marcotte contends that because a high rate of recidivism exists among sexual offenders, the DNA database will assist authorities in regulating that recidivism.[126]
{28}A disconcerting aspect of the
Marcotte rationale, however, is the nexus that it establishes
between DNA data banking and the regulatory interests associated
with running a prison (i.e., institutional security, order, and
discipline rationale) and with controlling recidivism among sexual
offenders.[127] Despite Marcotte's argument that
the statute is a regulation, the statute, on its face, authorizes
a pure law enforcement search.[128] The "special
needs" exception exists only for government interests outside
of law enforcement. As explained in Skinner, the "special
needs" exception was not meant to assist in prosecution,
but to merely identify impaired individuals and to prevent their
unsafe operation of trains.[129] Additionally, "special needs"
is a standard that allows the state to further the goals of a
statute that is otherwise thwarted by a necessity for probable
cause or individualized suspicion. In Skinner, individuals
who must succumb to searches predicated on special needs face
no threat of ultimately being prosecuted for what is found in
their sample; rather, they only face restriction from working
in a certain industry.[130] In order for Marcotte's reasoning to sustain
constitutional scrutiny, the court must accept the Fourth Circuit's
contention that merely "ascertaining and recording one's
identity" is not necessarily within the realm of law enforcement.[131]
The court must also accept that the uniqueness of DNA in identifying
individuals makes it the best means by which the government can
achieve this purpose.[132] The court, in Jones, reaches this
conclusion by systematically segregating prison inmates into a
separate category of individuals to whom the usual requirement
of probable cause does not apply,[133] but Jones
is criticized by its blanket diminishment of Fourth Amendment
rights.[134]
{29} Prior to the Marcotte
decision, but subsequent to Jones, two other U.S. Court
of Appeals ruled on the constitutionality of DNA sampling of convicted
felons. First, the Ninth Circuit, in Rise v. State,[135]
cleverly turned the government's interest from that of criminal
investigation to that of public interest. The DNA database would
serve the public in aiding authorities to get and to keep criminals
off the streets. In so doing, the court employed an analysis that
balanced the degree to which the data bank advances this public
interest against the severity of the resulting interference with
individual liberty.[136] The proponents of the DNA database prevailed.
The dissent, led by Judge Nelson, took issue with the Rise
majority, pointing out that the "special needs beyond normal
law enforcement" rationale supports searches on a lesser
ground than probable cause only in a very few, "carefully
tailored, regulatory contexts that do not involve the apprehension
of criminal perpetrators."[137]
{30} Second, the Tenth Circuit, in
Boling v. Romer,[138] recognized the complexity of applying the
"special needs" standard in a criminal context. Instead,
the court applied a "minimal intrusion" standard, asserting
that the government's interest should prevail, despite its criminal
application because collecting saliva and blood are minimal intrusions.[139]
Recall, this standard requires that when the search or seizure
incurs a minimal intrusion, "a reviewing court may balance
the government's interest in conducting the search, the degree
to which the search actually advances that interest, and the gravity
of the intrusion upon personal privacy to determine whether the
search is reasonable."[140] Perhaps the "minimal intrusion"[141]
test is the most persuasive mode of analysis to date. After all,
the foundation of all of these arguments is the Schmerber
ruling, which did not allow the extraction of blood incident to
arrest. Rather, Schmerber required exigent circumstances.
This requirement of exigency is not met when DNA sampling
is incident to conviction of a serious crime. The blood sample
obtained in Schmerber was used as evidence in prosecuting
the same crime for which the initial arrest was made under probable
cause.[142]
{31} While the issue may seem settled
in Connecticut for the moment, a review of the contemporary decisions
in the Fourth, Ninth, and Tenth Circuits reveals an uncertainty
about how to apply the "special needs" analysis. Is
the appropriate balance the government's interests versus the
"limited" privacy of convicts, railroad workers, or
others within highly regulated settings? Alternatively, should
the balance, instead be the government's interests versus the
"general" privacy of individuals, apart from any defined
setting? The latter balance is a more difficult case for the government,
particularly if the proffered interest is a criminal one. For
example, deterring recidivism is not a valid government interest.
On one hand, recidivism is far too broad a purpose, in that it
allows the use of the DNA sample to investigate past crimes. On
the other hand, it is inapplicable within the two extremes where
the individuals being sampled are either citizens without criminal
records or death row inmates who will never return to society
at large.
{32} One concern is whether the proffered
government interest is a balancing factor. It may very well be
established that the government's "need to conduct the search"
exists; however, setting aside concerns for individual privacy,
the factors to consider pertain to how badly the government "needs
to conduct the search without a warrant."[143] In other words,
how urgent is the governmental interest? The latter must be a
narrower interest requiring an even more narrowly construed means.
Granted, on its face, the Fourth Amendment requires that a search
be merely reasonable. However, DNA sampling is a search of the
kind that infringes on a person's constitutionally protected right
to privacy of his person. Thus, the courts must examine this particular
type of search under a more scrutinizing standard. The concept
of "special needs" does not suffice in the context of
DNA sampling for two reasons. First, "special needs"
is not a strict scrutiny standard. That is, it does not require
the government to demonstrate a compelling interest for invading
a person's zone of privacy. Second, the "special needs"
exception was developed in the area of administrative searches
- not criminal searches - thus, indicating its application presumes
prisoners' rights to privacy of their person should be equal to
those of free persons outside of a merely regulatory governmental
interest.[144] To assume that "special needs"
implies an automatic diminishing of privacy rights is incorrect;
rather, a diminished right to privacy only results if, within
a "special needs" analysis, the government's interest
prevails. Thus, if "special needs" are not clearly defined,
there exists the potential for statutes to evolve that broaden
the types of qualifying crimes, and also broaden the types of
qualifying individuals.[145] For example, Louisiana's statute provides
for the testing of arrestees.[146]
{33} Moreover, DNA fingerprinting
technology ultimately may enable criminal investigators not only
to identify specific perpetrators of specific crimes, but also
to identify likely perpetrators of crime, in general, by virtue
of their genetic characteristics.[147] The dissent in Rise
suggests that developing technology may yield even more intrusive
possibilities for verifying an individual's identity, which would
provide the government with an even stronger interest in invading
one's bodily integrity. This developing technology could legitimize
a weakened Fourth Amendment.[148] DNA sampling in the criminal context under
a "special needs" standard opens the door for potential
mass government intrusion.[149]
{34} A first step toward prevention
would be for the Supreme Court to interpret the parameters of
"beyond normal law enforcement."[150] Do interests
like deterring recidivism, solving crimes, and exonerating the
wrongly accused or convicted fall outside the bounds of normal
law enforcement? If the government's interest is to control recidivism,
or to prevent the commission of future crimes, it bears an equal
obligation to use DNA technology to address unsolved past crimes.
It seems that justice demands that the technology be used, as
well, to verify the validity of past convictions. Presently, if
the government's proffered interest is public safety, the argument
for DNA sampling is more constitutionally sound than if its true
interest is criminal investigation. However, what government interests
fall within the realm of public safety, but outside the bounds
of normal law enforcement?
{35} The conclusiveness of DNA evidence
ensures the unquestionability of convictions and enhances the
effectiveness of plea bargaining and the certainty of the death
penalty. Yet, it can also be used to address appeals to criminal
convictions. According to Project Innocence, a nonprofit group
espousing the use of DNA fingerprinting to exonerate the wrongfully
convicted, DNA analysis has yielded the exoneration of forty-eight
prisoners, including twelve death row inmates.[151] These are impressive
statistics in comparison to the number of cold hits investigators
have made in their diligent, proactive attempts to find criminals.[152]
Perhaps, the existence of DNA technology should substantiate a
requirement that the government be as diligent in its efforts
to exonerate the wrongly convicted. Exoneration, however, usually
results from the prisoner taking the initiative to request that
DNA analysis be applied in his case.
{36} Recall Calvin Johnson, who served
sixteen years in a Georgia prison for rape. Johnson's state appeals
were exhausted, but a subsequent DNA analysis of biological evidence
from the crime scene exonerated him. DNA analysis has been used
to demonstrate that it is acceptable for an individual's right
to privacy to be limited in the criminal context, but the same
technology can also be used to ensure one's right to a fair trial.
In other words, accompanying the statutory requirement that an
individual provide a DNA sample, there should be an automatic
right to its analysis and a guarantee that the sample will be
used to ensure the conclusiveness of the conviction - even if
the deadline for an appeal has passed.[153] A few states agree
with that proposition. New York and Illinois, for example, provide
for automatic testing within their statutes,[154] and Wyoming has
ensured the longevity of the testing procedure through a state
supreme court decision.[155]
{37} Perhaps, this special need of
protecting individual liberty - that is, an assurance that what
occurs within the bounds of normal law enforcement does not harm
the innocent - is a better articulated special need for DNA sampling.
In other words, the invasion of personal privacy to acquire genetic
evidence may be more acceptable, constitutionally, if it is couched
in the language of protecting the innocent, rather than searching
out criminals. For example, developing a massive DNA data bank
should coincide with developing a data bank for biological evidence
from crime scenes and enhancing requirements for retaining that
biological evidence. Additionally, with the constitutional exceptions
allowing law enforcement to collect DNA samples, courts must eliminate
procedural bars to using a DNA database to exonerate criminal
convictions.
{38} DNA sampling is a reasonable
search under the "special needs" exception in at least
four circuits. As several dissents have shown, however, the judicial
building blocks that led to the outcome in Marcotte are
unstable.[156] Every constitutional infringement, whatever
its purpose, comes at the expense of individual liberty. When
it comes to the development of DNA sampling, the Supreme Court
should strike a more reasoned balance between fighting crime and
protecting privacy.
{39} The intrigue with DNA technology,
the success with which it is used to solve crimes and to free
the wrongly accused, and the public's disdain for crime have all
fostered the expediency with which CODIS and other state data
banks have developed. Marcotte, however, exemplifies
the lack of uniformity among the federal circuits when employing
the "special needs" analysis in a criminal context.[157]
Apart from whether the acquisition of this data is constitutional,
one cannot deny the threat to individual privacy imposed by warehouses
of genetic information. This information can be used for purposes
outside of law enforcement - purposes that go beyond those discussed
in this comment. For example, individuals submitting DNA samples
must have guarantees of privacy protection, such as how the information
will be used, who will have access to it, how it will be disseminated,
and if and when it will be expunged from the database. A guarantee
of expungement must exist, at a minimum, when the government's
proffered purpose for obtaining the sample no longer exists.
{40} The present lobbying activity in the federal legislature suggests that DNA data banks will continue to develop as a definitive tool for criminal investigation. Recently, the International Association of Police Chiefs urged Congress to require DNA samples from every person arrested in connection with a crime.[158] This political pressure, along with the speed of developing technology, may soon force the Supreme Court to address the constitutionality of DNA sampling in order to bring uniformity and coherence to the various circuits' rationales for upholding statutes of this nature.
-Deborah F. Barfield
[*]. Ms. Barfield earned a B.A. in Religion from the College of William and Mary in 1990. She has a Masters in Public Administration, with a concentration in nonprofit management, which she received from George Mason University in Fairfax, Virginia in 1997. Prior to entering law school at the University of Richmond, she worked with the National School Boards Association. Ms. Barfield will earn a Juris Doctor in May 2001. While at the University of Richmond, she has been an officer with the Student Bar Association, a member of the Client Counseling and Negotiations Board, and a senior staff member of the Richmond Journal of Law & Technology. The author would like to thank Professors Rodney Smolla and John Douglass for their critical review of her work.
[**]. NOTE: All endnote citations in this article follow the conventions appropriate to the edition of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION that was in effect at the time of publication. When citing to this article, please use the format required by the Seventeenth Edition of THE BLUEBOOK, provided below for your convenience.
Deborah F. Barfield, Comment, DNA Fingerprinting - Justifying the Special Need for the Fourth Amendment's Intrusion into the Zone of Privacy, 6 RICH. J.L. & TECH. 27 (Spring 2000), at http://www.richmond.edu/jolt/v6i5/note2.html.
[1].
U.S. CONST. amend. IV (providing "[t]he right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause
. . .").
[2].
See id.
[3].
See Terry v. Ohio, 392 U.S. 1, 10-11 (1968).
[4].
See Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251
(1891) (reading, "[n]o right is held more sacred, or is more
carefully guarded, by the common law, than the right of every
individual to the possession and control of his own person, free
from all restraint or interference of others, unless by clear
and unquestionable authority of law"). Id.
[5].
See Roe v. Marcotte, 193 F.3d 72, 76-80 (2nd Cir. 1999)
(examining issue and concluding that the DNA statute does not
violate the Fourth Amendment); Shaffer v.Saffle, 148 F.3d 1180
(10th Cir. 1998)).
[6].
See Jones v. Murray, 962 F. 2d 302 (4th Cir. 1992) (holding
that convicted felons retain only a limited expectation of privacy).
[7].
See United States v. Bullock, 71 F.3d. 171 (5th Cir. 1995);
Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995); Jones v. Murray,
962 F.2d 302 (4th Cir. 1992).
[8].
Palko v. Connecticut, 302 U.S. 319, 325 (1937).
[9].
See Katz v. United States, 389 U.S. 347, 351 (1967) (explaining
that the Fourth Amendment does not provide a general right to
privacy; rather, it protects what individuals seek to preserve
as private.).
[10].
See Roe v. Wade, 410 U.S. 113, 155 (1973) (articulating
the strict scrutiny standard in the context of government regulation
of a woman's fundamental right to decide to have an abortion)
citing Kramer v. Union Free School District, 395 U.S. 621,
627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Griswold
v. Connecticut, 381 U.S.479, 485 (1965); Aptheker v. Secretary
of State, 378 U.S. 500, 508 (1964); Sherbert v. Verner, 374 U.S.
398, 406 (1963); Cantwell v. Connecticut, 310 U.S. 296, 307-308
(1940); Eisenstadt v. Baird, 405 U.S.405 U.S. 438, 460, 463-64
(1972) (White, J., concurring in result).
[11].
See ALA. CODE § 36-18-24 (Supp. 1999); ALASKA STAT.
§ 44.41.035 (Michie 1998 & Supp. 1999); ARIZ. REV. STAT.
ANN. §
31-281 (West 1996 & Supp. 1999); ARK.
CODE ANN.
§ 12-12-1109 (Michie 1999);
CAL.
PENAL CODE
§ 296.1 (West 1999 & Supp. 2000); COLO. REV. STAT. §
17-2-201(5)(g) (1999); CONN.
GEN.
STAT. § 54-102(g) (1994 & Supp. 1999),
repealed and substituted by 1999 CONN. ACTS
183, § 11 (Reg. Sess.); DEL.
CODE ANN. tit. 29, § 4713(b) (1997 & Supp.
1998); FLA. STAT. ANN. § 943.325 (West 1996 & Supp. 2000);
GA. CODE ANN.
§ 24-4-60 (1995 & Supp. 1999); HAW. REV.
STAT.
§ 706-603 (1993 & Supp. 1998); IDAHO CODE §
19-5507 (1997 & Supp. 1999); 730 ILL.
COMP.
STAT. 5/5-4-3 (West 1997 & Supp. 1999), as
amended by 1999 ILL.
LAWS 528; IND.
CODE § 10-1-9-10) (1999); IOWA CODE §
13.10 (1995 & Supp. 1999); KAN.
STAT.
ANN.
§ 21-2511 (West 1995 &
Supp. 1999), as amended by 1999 KAN. SESS.
LAWS
164, §§ 3, 39; KY. REV.
STAT. ANN.
§ 17.170 (Michie 1996 &
Supp. 1999); LA. REV.
STAT. ANN. § 15:609 (West Supp. 2000); ME. REV.
STAT. ANN.
tit. 25, § 1574 (West Supp. 1996); MD. ANN. CODE
art. 88B, § 12A (1998 & Supp. 1999); MASS. ANN.
LAWS ch.
22E, § 3 (Law. Co-op. 1996 & Supp. 2000); MICH.
COMP.
LAWS ANN.
§ 750.520m (West 1991 & Supp. 1999); MINN. STAT.
§ 609.3461 (Supp. 2000); MISS.
CODE ANN. § 45-33-15(3) (1999 & Supp. 1999);
MO. ANN. STAT. §
650.055 (West Supp. 2000); MONT. CODE
ANN.
§44-6-102 (1999); NEB.
REV.
STAT. §
29-4106 (Supp. 1999); NEV.
REV.
STAT.
ANN. § 176.0913 (Michie 1997 & Supp.
1999); N.H. REV. STAT.
ANN.
§ 632-A:21 (1996 & Supp.
1999); N.J. STAT. ANN.
§ 53:1-20.20 (West Supp.
1999); N.M. STAT. ANN. § 29-16-2 (Michie 1997 & Supp. 1999);
N.Y. EXEC. LAW
§ 995 (Consol. 1995 &
Supp. 2000); N.C. GEN.
STAT. § 15A-266.4 (1999); N.D. CENT. CODE §
31-13-03 (1997 & Supp. 1999); OHIO REV.
CODE ANN. § 2901. 07 (West 1999 & Supp. 1999);
OKLA.
STAT. ANN.
tit. 74, § 150.27a (West 1995 & Supp. 2000); OR. REV.
STAT.
§ 137.076 (Supp.1998), as amended by 1999 OR. LAWS 97,
§ 1; 35 PA. CONS.
STAT.
ANN.
§ 7651.306 (West 1998 &
Supp. 1999); R.I. GEN.
LAWS § 12-1.5-8 (Supp. 1999); S.C. CODE ANN.
§ 23-3-620 (Law Co-op. Supp. 1999); S.D. CODIFIED LAWS §
23-5-14 (1998 & Supp. 2000), as amended by H.B. 1064,
75th Leg. (S.D. 2000); TENN. CODE
ANN.
§ 38-6-113 (1997 & Supp.
1999); TEX. GOV.
CODE ANN. § 411.142 (West 1998 & Supp. 2000);
UTAH CODE ANN. §
53-10-403 (Supp. 1999); VT. STAT.
ANN.
tit. 20, § 1933 (Supp. 1999);
VA. CODE ANN.
§ 19.2-310.2 (Michie 1995 & Supp. 1999); WASH.
REV. CODE
ANN. §
43.43.754 (West 1998 & Supp. 2000); W. VA. CODE
§ 15-2b-6 (2000), as amended by H.B. 4322, 75th Leg.
(W. Va. 2000); WIS.
STAT. § 165.76 (1997 & Supp. 1999); WYO.
STAT. ANN. §
7-19-403 (Michie 1999) (authorizing the creation of state DNA
databases, outlining procedures for taking samples, indicating
from whom samples should be taken, and discussing other regulatory
issues).
[12].
See ARK. CODE
ANN. § 12-12-1109 (Michie 1999); COLO. REV. STAT.
§ 17-2-201(5)(g) (1999); DEL.
CODE
ANN.
tit. 29, § 4713 (1997 &
Supp. 1998); GA. CODE
ANN. § 24-4-60 (1995 & Supp. 1999); HAW. REV.
STAT. §
706-603 (1993 & Supp. 1999); 730 ILL.
COMP.
STAT. 5/5-4-3 (West 1997 & Supp. 1999), as
amended by 1999 ILL. LAWS
528; IND.
CODE
§ 10-1-9-10 (1999); KY. REV. STAT.
ANN.
§ 17.170 (Michie 1996 & Supp. 1999); LA. REV. STAT.
ANN.
§ 15:609 (West Supp. 2000); MASS.
ANN.
LAWS
ch. 22E, § 3 (Law. Co-op.
1996 & Supp. 2000); MISS.
CODE
ANN.
§ 45-33-15(3) (1999 &
Supp. 1999); N.H. REV.
STAT. ANN. § 632-A:21 (1996 & Supp. 1999);
N.J. STAT. ANN. § 53:1-20.20 (West Supp. 1999); N.D.
CENT. CODE §
31-13-03 (1997 & Supp. 1999); S.C. CODE ANN.
§ 23-3-620 (Law Co-op. Supp. 1999); TENN. CODE ANN.
§ 38-6-113 (1997 & Supp. 1999) (limiting DNA sampling
to sexual offenses only).
[13].
See DEL. CODE
ANN. tit. 29, § 4713 (1999) (including bestiality,
female genital mutilation, and engagement in child pornography);
GA. CODE ANN.
§ 24-4-60 (1999) (including statutory rape, sexual assault
against people in custody, and necrophilia).
[14].
MINN. STAT.
§ 299C.09 (1999).
[15].
Alabama, Nebraska, New Mexico, Virginia, Wyoming, and Minnesota.
See ALA. CODE § 36-18-20 (Supp. 1999); NEB. REV. STAT.
§ 29-41-1 (Supp. 1999); N.M. STAT. ANN. § 29-16-2 (Michie 1999); VA. CODE ANN. §
19.2-310.2 (Michie 1999); WYO. STAT. ANN. § 7-19-403 (Michie 1999); MINN.
STAT.
§ 299C.09 (Supp. 2000) (extending the requirement of DNA
sampling to gross misdemeanors as well).
[16].
See ARK. CODE
ANN.
§ 12-12-1105 (Michie 1999).
[17].
See WIS. STAT. § 165.76 (1997 & Supp.1999).
[18].
See CAL. PENAL
CODE § 295 (West 1999); ME. REV. STAT. ANN. tit.
25 § 1574 (West Supp. 1996); MD. ANN. CODE art. 88B, § 12A (1998 & Supp. 1999);
MICH.
COMP.
LAWS
§ 750.520m (1991 & Supp. 1999); N.Y. EXEC. LAW
§ 995 (McKinney 1999); OHIO
REV. CODE
ANN.
§ 2901.07 (West 1999); UTAH CODE
ANN.
§ 53-10-403 (Supp. 1999); W. VA. CODE § 15-2b-6 (1999) (adding murder to the
list of violent crimes that qualify for DNA sampling).
[19].
See ARK. CODE
ANN.
§ 12-12-1109 (Michie 1999)
(failing to define "violent offense); HAW. REV. STAT. §
706-603 (1993 & Supp. 1998) (defining violent offense as murder
or attempted murder); MO. ANN.
STAT.
§ 650.055 (West Supp. 2000)
(sending reader to § 565 in search of definition); MONT. CODE ANN. §
44-6-102 (1999) (sending reader to 41-5-1502 in search of definition);
WASH. REV. CODE
§ 43.43.754 (West 1998 & Supp. 2000) (applying the descriptor
"violent" to no particular crime); see also ALA. CODE §
36-18-20 (Supp. 1999) (including any "crime against the person").
[20].
See, e.g., ALA. CODE
§ 36-18-20 (Supp. 1999) (including
stalking); CAL. PENAL
CODE § 295 (West 1999 & Supp. 2000) (designating
a list of qualifying violent crimes); FLA. STAT.
ANN.
§ 943.325 (West 1996 & Supp. 2000) (including car jacking);
IDAHO CODE
§ 19-5507 (1999) (including arson, racketeering, and kidnaping);
MD. ANN. CODE
art. 88B, § 12A (1998 & Supp. 1999) (listing seven qualifying
crimes); MICH. COMP. LAWS
§ 750.520m (1991 & Supp.
1999) (listing code provisions where one may find the qualifying
crimes); W. VA. CODE
§ 15-2b-6 (2000) (listing
the numerous code sections that define the offense that triggers
the DNA requirement); see also ME. REV. STAT. ANN.
tit. 25, § 1574(4)(N) (West Supp. 1996) (for any lesser offense
if the original charge was for a greater offense that qualified
for DNA sampling). For the most extensive and explicit list of
qualifying crimes, see N.C. GEN.
STAT.
§ 15A-266.4 (1999).
[21].
See N.C. GEN.
STAT. § 15A-266.4 (1999) (listing twenty-two
crimes covered by the Article of the statute).
[22].
See NEB. REV.
STAT.
§ 29-4106 (Supp. 1999); 35
PA. CONS. STAT. ANN. §
7651.306 (West 1998 & Supp. 1999) (allowing DNA sampling for
any offense that has a substantial impact on the detection and
identification of sexual offenders and violent offenders); see
also ALA. CODE
§ 36-18-20-24 (Supp. 1999)
(giving agency director discretion to collect DNA from perpetrators
of other offenses not specifically outlined in the statute).
[23].
See also MINN. STAT.
§ 299C.09 (1999) (targeting
individuals who, upon arrest, were convicted of a felony or gross
misdemeanor within the state).
[24].
See IDAHO CODE
§ 19-5507 (1999).
[25].
See, e.g., CAL.
PENAL
CODE § 295 (West 1999 & Supp. 2000) (extending
DNA sampling to anyone convicted of an enumerated list of crimes
who might, as punishment, be committed to any state institution);
HAW.
REV.
STAT. §
706-603 (1993 & Supp. 1998) (requiring DNA sampling whether
the convicted person is incarcerated or not); IDAHO CODE §
19-5507 (1997 & Supp. 1999) (requiring DNA sampling of juveniles
tried as adults); 730 ILL. COMP.
STAT.
5/5-4-3 (West 1997 & 1999)
(extending sampling requirement to juvenile sex offenders); MD. ANN.
CODE
art. 88B, § 12A (1998 & Supp. 1999) (including a conviction
for attempt of one of several crimes); MASS. GEN. LAWS
ch. 22E, § 3 (Law. Co-op. 1996 & Supp. 2000) (requiring
parolees to supply sample); MICH. COMP.
LAWS § 750.520m (1999) (extending to the
crime of attempt and including parolees); S.C. CODE ANN.
§ 23-3-620 (Law Co-op. Supp. 1999) (including probationers);
VT. STAT.
ANN.
tit. 20, § 1933 (1999) (including probationers and parolees).
But see COLO. REV. STAT. § 17-2-201(5)(g) (1999) (making DNA
sampling a condition of parole); N.H. REV. STAT. ANN. 632-A:21
(1996 & Supp. 1999) (making sampling a condition of release
rather than requiring it immediately upon incarceration); R.I.
GEN. LAWS
1956, § 12-1.5-17 (Supp. 1999) (making sampling a condition
of release and making refusal to give a sample a violation of
release).
[26].
See, e.g., COLO.
REV. STAT.
§ 17-2-201(5)(g) (1999) (making
DNA sampling a condition of parole); N.H. REV. STAT. ANN. 632-A:21
(1996 & Supp. 1999) (making sampling a condition of release
rather than requiring it immediately upon incarceration); R.I.
GEN. LAWS
1956, § 12-1.5-17 (Supp. 1999) (making sampling a condition
of release and making refusal to give a sample a violation of
release).
[27].
DNA Identification Act of 1994, Pub.L. 103-322, 108 STAT. 2068
(codified at 42 U.S.C. §§ 14131-34 (1994)).
[28].
See 42 U.S.C. § 14151 (a) (1994).
[29].
See Pub. L. 104-132, § 811 (b)(2), 110 STAT. 1313
(1996) (amending the DNA Identification Act).
[30].
See id.
[31].
See id. For more information about the Department of Justice
and FBI current and future use of DNA methods, see National Institute
of Justice, National Commission on the Future of DNA Evidence
(last modified Jan. 16, 2000) <http://www.ojp.usdoj.gov/nij/dna/welcome.html>
.
[32].
See Violent Offender DNA Identification Act, H.R. 2810,
106th Cong. § 3 (a) (1999).
[33].
See id. § 3 (d)(2)(A); see also S. 903, 106th
Cong. § 3 (d)(2)(A) (1999) (representing the Senate version
of H.R. 2810).
[34].
See Convicted Offender DNA Index System Support Act of
1999, H.R. 3375, 106th Cong. § 6 (b) (1999).
[35].
See Human Genome Program, U.S. Department of Energy, Primer
on Molecular Genetics, Washington, D.C. (1992) available
at (visited Mar. 23, 2000) <http://www.ornl.gov/TechResources/Human_Genome/publicat/primer/prim1.html>.
[36].
See id.
[37].
See id.
[38].
See Andrea De Gorgey, Note, The Advent of DNA Databanks:
Implications for Information Privacy, 16 AM. J.L. &
MED.,
381, 381 n.4 (1990).
[39].
See id. at 381.
[40].
See Black's Law Dictionary 495 (7th ed. 1999) (defining
DNA identification). For a discussion of how DNA evidence exculpated
individuals wrongly convicted, see generally Edward Connors
et al., U.S. Department of Justice, Convicted by Juries; Exonerated
by Science: Case Studies in the Use of DNA Evidence to Establish
Innocence after Trial (1996). This study can also be found at
National Institute of Justice, Investigative Sciences (last
modified Jan. 16, 2000) <http://www.ojp.usdoj.gov/nij/dna>
.
[41].
See De Gorgey, supra note 35, at 381.
[42].
See id.
[43].
See De Gorgey, supra note 35, at 382 n.5.
[44].
See De Gorgey, supra note 35, at 381 n.2.
[45].
See Mark Holmberg, Leap of Faith and Science: State's
DNA Database is Paying Off in Solving Crimes, RICH. TIMES-DISPATCH,
Dec. 19, 1999, at A1.
[46].
See id.
[47].
See Mark Hanson, Banking on DNA, 85 ABA J. 26, 27
(1999).
[48].
See id. at 26-27.
[49].
See id.
[50].
See Mark Hansen, DNA Bill of Rights: Activists Call
for Standards on Inmate Testing, Evidence Preservation, 86
ABA J. 30, (2000).
[51].
See id.
[52].
See generally What Jennifer Saw (PBS Frontline
television broadcast, Feb. 25, 1997) (examining the reliability
of eyewitness identification and the implications of DNA evidence
and considering the case of Ronald Cotton); see also PBS,
FRONTLINE: Cotton's Wrongful Conviction (visited Mar. 15,
2000) <http://www.pbs.org/wgbh/pages/frontline/shows/dna/cotton/summary.html>
(transcribing broadcast).
[53].
See id.
[54].
See id.
[55].
See id.
[56].
See id.
[57].
See Paul Derienzo & Joan Mossy, Gene Cops: The Police
Want Your DNA, In These Times (Inst. for Pub. Affairs, Las
Vegas), Dec. 26, 1999, at 14.
[58].
Other issues implicated by DNA sampling are due process, equal
protection, and ex post facto; however, these are beyond the scope
of this case note.
[59].
Landry v. Attorney General, 709 N.E.2d 1085, 1091 (Mass. 1999)
(holding "the high government interest in a particularly
reliable form of identification outweighs the minimal intrusion
of a pinprick").
[60].
See Erin Hallissy, Prying into DNA Raises Constitutional
Questions, San Francisco Chronicle, Oct. 20, 1999, at A12.
[61].
But see Ferguson v. City of Charleston, 186 F. 3d 469 (4th
Cir. 1999), cert. granted.
[62].
384 U.S. 757 (1966).
[63].
See id. at 767.
[64].
Id. at 771.
[65].
See id.
[66].
392 U.S. 1 (1968).
[67].
See id. at 22 (finding that "'[i]if subjective good
faith alone were the test, the protections of the Fourth Amendment
would evaporate. . .'") (quoting Beck v. Ohio, 379 U.S. 89,
97 (1964)).
[68].
Id. at 21-22 (framing the objective test of the reasonableness
of the officer's conduct as whether "the facts available
to the officer at the moment of the seizure or the search 'warrant
a man of reasonable caution in the belief' that the action taken
was appropriate").
[69].
Id. at 19-20 (noting that the warrantless search in the instant
case related to the officer's on-the-spot observations).
[70].
441 U.S. 520 (1979).
[71].
See id. at 560.
[72].
See id. at 559, 560 (upholding the constitutionality of
body cavity inspections of inmates following contact visits absent
probable cause due to the unique security dangers in a detention
facility).
[73].
Id. at 559.
[74].
See id. at 545.
[75].
468 U.S. 517 (1984).
[76].
See id. at 530.
[77].
WIS. ADMIN. CODE
§ 328.21(3)(a) (1997 & Supp. 1999).
[78].
See Griffin v. Wisconsin, 483 U.S. 868, 872 (1987).
[79].
Id. at 873-74.
[80].
489 U.S. 602 (1989).
[81].
Id. at 634 (referring to a federal regulation requiring
railroads to conduct breath, blood, and urine analysis to pursue
the government interest of public safety in the railroad industry).
[82].
515 U.S. 646 (1995).
[83].
Id. at 663.
[84].
Id.
[85].
193 F.3d 72 (2nd Cir. 1999) aff'g sub nom. Roe v. Office
of Adult Probation, 125 F.3d 47 (2nd Cir. 1997).
[86].
See id. at 75-76 (noting that plaintiff's refused to submit
the blood sample arguing, inter alia, that the statute violated
the Fourth Amendment's prohibition against unreasonable searches
and seizures).
[87].
CONN.
GEN. STAT.
ANN. §
54-102g (a) & (b) (1994 & Supp. 1999).
[88].
See Marcotte, 193 F.3d at 76.
[89].
See id.
[90].
See id. at 77.
[91].
See id.
[92].
See id. at 76.
[93].
962 F.2d 302 (4th Cir. 1992).
[94].
Marcotte, 193 F.3d at 80 (quoting Jones, 962 F.2d
at 306)).
[95].
See id. at 82.
[96].
See Jones, 962 F. 2d at 307 n.2 (finding no need to apply
the "special needs" exception to the probable cause
requirement because cases involving "the Fourth Amendment
rights of prison inmates to comprise a separate category of cases
to which the usual per se requirement of probable cause does not
apply. . ."). Id.
[97].
See supra notes 77-79 and accompanying text.
[98].
See Marcotte, 193 F.3d at 82.
[99].
"Recidivism" is "a tendency to relapse into a former
pattern of behavior; especially a tendency to return to criminal
habits." The American Heritage Dictionary of the English
Language 1088 (4th ed. 1973).
[100].
See Marcotte, 193 F.3d at 82.
[101].
Indicative of the magnitude of the invasion is the threat to the
individual's health, safety, and dignitary interests. See generally
Winston v. Lee, 470 U.S. 753, 763-64 (1985) (finding that
threats to defendant's safety posed by compelled surgery were
appropriately factored into the lower court's analysis of the
reasonableness of the search). The Court ultimately held that
the compelled surgery would constitute an unreasonable search
in violation of the Fourth Amendment. See id. at 766-67.
[102].
See supra note 7 and accompanying text.
[103].
See CONN. GEN. STAT. § 54-102g(a) (1999).
[104].
See generally Rise v. State, 59 F.3d. 1556, 1558 n.1 (9th
Cir. 1995) (limiting DNA extraction to offenders incarcerated
for murder or sex related crimes such as "rape, sodomy, unlawful
sexual penetration, sexual abuse, public indecency, [and] incest.
. ."). Id.
[105].
See Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602, 616 (1989).
[106].
See Marcotte, 193 F.3d at 80 (noting the statute
regulates the manner in which the blood test is conducted and
the results are analyzed, restricts access and secures confidentiality,
and provides for the information's expungement from the database
upon a reversal or dismissal of the conviction).
[107].
59 F.3d. 1556 (9th Cir. 1995).
[108].
See Rise, 59 F.3d at 1559 (comparing the information derived
from a blood sample to information derived from fingerprinting
and noting that both provide "an identifying marker unique
to the individual from whom the information is derived").
Id.
[109].
See id. at 1560.
[110].
See Olivas, at 856 P.2d at 10 78.
[111].
Rise at 59 F.3d at 1570 (Nelson, J., dissenting) (comparing
DNA sampling to fingerprinting or taking mugshots).
[112].
See id. at 1559.
[113].
See Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996).
[114].
See Roe v. Marcotte, 193 F.3d 72, 79 (1999).
[115].
101 F.3d 1336 (10th Cir. 1996).
[116].
See id. at 1340.
[117].
Bell v. Wolfish, 441 U.S. 520, 559 (1979).
[118].
See Marcotte, 193 F.3d at 79.
[119].
See id. at 77.
[120].
856 P. 2d 1076 (1993).
[121].
See Marcotte, 193 F.3d at 81, citing Jones v. Murray,
962 F.2d 302, 312 (4th Cir. 1992) (Murnaghan, J., dissenting)
(stating that "[b]ecause the state's DNA testing requirement
was not justified by internal prison security needs . . . prisoners
ha[ve] a 'reasonable expectation of privacy within [their] bodies.'").
Id.
[122].
See id. at 78.
[123].
See id. at 79.
[124].
See id. at 78.
[125].
See id. at 79.
[126].
See id.
[127].
See id.
[128].
See CONN. GEN.
STAT. § 54-102g (1994 & Supp. 1999).
[129].
See State v. Olivas, 856 P. 2d 1076, 1084 (1993), citing
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 620-21
(1989).
[130].
See id. at 89 (explaining Skinner, 489 U.S. at 602
(1989)).
[131].
See Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).
[132].
See id. at 307.
[133].
See id. at 306 (considering that an individual's presence
within the prison system establishes per se probable cause).
[134].
See Olivas, 856 P.2d at 1086 (explaining the lower and
higher courts' rationales in Jones). The Olivas
found the lower court's reasoning in Jones to be more sound,
but defers to the persuasive authority of the higher court in
holding the statute constitutional.
[135].
59 F.3d 1556 (9th Cir. 1995).
[136].
See id. at 1560.
[137].
Id. at 1567.
[138].
101 F.3d 1336 (10th Cir. 1996).
[139].
See id. at 1340 (explaining that when the purpose
of collection is to create a data bank to assist in the investigation
and prosecution of criminal offenses, "special needs"
cannot be used as the balancing test).
[140].
Olivas, 856 P. 2d 1076, 1092 (1993) (Utter, J., concurring),
citing Brown v. Texas, 443 U.S. 47 (1979).
[141].
See supra notes 68-71 and accompanying text.
[142].
Olivas, 856 P.2d at 1083-84, citing Schmerber v.
California, 384 U.S. 757, 772 (1966).
[143].
Id. at 1090 (Utter, J., concurring); see also Rise,
59 F.3d at 1564 (Nelson, J., dissenting) (accusing the majority
of extending the Schmerber rationale to uphold "mere
fishing expeditions to acquire useful evidence."). Id.
[144].
See Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992)
(Murnaghan, J., dissenting).
[145].
See, e.g., LA. REV.
STAT.
ANN.
§ 15:609 (West Supp. 2000)
(requiring any person who is merely arrested for a felony sexual
offense to submit to DNA sampling).
[146].
Id.
[147].
See generally Adrienne Appel, Felons Surrender Blood
to DNA Data Bank, The Boston Globe, Oct. 12, 1999, at B2 (quoting
Ruth Hubbard, Professor Emeritus of Biology at Harvard University
and board member of the Council for Responsible Genetics who is
concerned about using DNA samples for purposes other than prosecuting
criminals).
[148].
Rise v. State, 59 F. 3d 1556 1569 n. 3 (9th Cir. 1995) (Nelson,
J., disenting).
[149].
See Olivas, 856 P.2d at 1093 (Utter, J., concurring).
[150].
See supra text accompanying notes 75-79.
[151].
Derienzo & Mossy, supra note 142.
[152].
See Mark Holmberg, Leap of Faith Science: State's DNA
Database is Paying Off in Solving Crimes, RICH. TIMES-DISPATCH,
Dec. 19, 1999, at A1 (reporting that Virginia has made 100 cold
hits since establishing its data bank in 1989).
[153].
See Derienzo & Mossy, supra note 142.
[154].
See 730 ILL.
COMP.
STAT.
5/5-4-3(a) (West 1999) and N.Y.
EXEC. LAW
§ 995-c(3) (McKinney 1999).
[155].
See Doles v. Wyoming, No. 98-273, 1999 Wyo. LEXIS 197,
at *1 (Wyo. Dec. 22, 1999).
[156].
See Rise, 59 F.3d at 1564 (Nelson, J., dissenting) (disagreeing
with majority's application of Skinner).
[157].
See infra Part III.E.1. (discussing how the court in Marcotte
defers to the ruling in Jones as persuasive authority but
discounts the Fourth Circuit's rationale in lieu of a state supreme
court reasoning from Olivas).
[158].
See Police Chiefs Want DNA Samples from Suspects, ORLANDO
SENTINEL, Nov. 5, 1999, at A16.