An interesting article appeared yesterday in the New York Times. You can read it here, but the gist of it is that the federal government and about 15 states are now collecting DNA from people who are charged with certain crimes, usually felonies, even if the individuals are not convicted. As the article observes, this raises some interesting legal questions, including whether the routine seizure of DNA from defendants who are not convicted violates the Fourth Amendment. There's a Congressional Research Service report on this issue, available here, which concludes as follows: This expansion is likely to alter the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent. North Carolina law currently provides for the routine collection of DNA only of convicted defendants. See G.S. 15A-266.4 (providing for the collection of DNA upon conviction of any felony, assault on a handicapped person, stalking, or sexual battery). As far as I can tell, the statute has never been challenged, and challenges to similar statutes in other jurisdictions have generally been rejected. Courts uphold DNA collection from convicted defendants either on a "special needs" rationale or on a Terry-esque theory that the minimal intrusion of a blood draw is justified by the [...]
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