The Constitutionality of DNA Sampling of Arrestees

Anip Patel


This article addresses whether the DNA Act (which requires DNA samples from arrestees) passes constitutional muster. I argue that the act is constitutional and that if society believes the collection of DNA from arrestees violates an individual’s privacy, it should seek legislative resolution and not seek the protection of the Fourth Amendment of the Constitution. Throughout my analysis, I demonstrate why DNA collection is constitutional and how it is necessary. Part I of this article examines the history of DNA sampling, case law establishing an arrestee’s expectation of privacy, and the applicable Fourth Amendment tests. Part II examines the arguments for and against DNA sampling by considering case law at the state and federal level, and explores the significance of junk DNA and the treatment of abandoned DNA. Part III is the personal analysis section, which argues that the totality of circumstances test is the proper test. I apply the test to determine that there is minimal intrusion of an arrestee’s expectation of privacy through DNA sampling, a legitimate governmental interest, and that warrants are unnecessary. Further, the section demonstrates why DNA sampling is a natural progression from fingerprint collection, and the section analyzes abandoned DNA and DNA sampling. Part IV concludes the article by stating that the Fourth Amendment is not violated and that society must turn to Congress to seek greater protection.

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