The Constitutionality of DNA Sampling of Arrestees

Authors

  • Anip Patel

DOI:

https://doi.org/10.5195/tlp.2012.105

Abstract

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.

Downloads

Published

2012-12-21

How to Cite

Patel, A. (2012). The Constitutionality of DNA Sampling of Arrestees. Pittsburgh Journal of Technology Law & Policy, 13. https://doi.org/10.5195/tlp.2012.105

Issue

Vol 13: VOLUME XIII, Issue 1-Fall 2012

Section

Articles

License


Authors who publish with this journal agree to the following terms:

    1. The Author retains copyright in the Work, where the term “Work” shall include all digital objects that may result in subsequent electronic publication or distribution.

    2. Upon acceptance of the Work, the author shall grant to the Publisher the right of first publication of the Work.

    3. The Author shall grant to the Publisher and its agents the nonexclusive perpetual right and license to publish, archive, and make accessible the Work in whole or in part in all forms of media now or hereafter known under a Creative Commons 4.0 License (Attribution-Noncommercial-No Derivative Works), or its equivalent, which, for the avoidance of doubt, allows others to copy, distribute, and transmit the Work under the following conditions:
      1. Attribution—other users must attribute the Work in the manner specified by the author as indicated on the journal Web site;
      2. Noncommercial—other users (including Publisher) may not use this Work for commercial purposes;
      3. No Derivative Works—other users (including Publisher) may not alter, transform, or build upon this Work,with the understanding that any of the above conditions can be waived with permission from the Author and that where the Work or any of its elements is in the public domain under applicable law, that status is in no way affected by the license.

    4. The Author is able to enter into separate, additional contractual arrangements for the nonexclusive distribution of the journal's published version of the Work (e.g., post it to an institutional repository or publish it in a book), as long as there is provided in the document an acknowledgement of its initial publication in this journal.

    5. Authors are permitted and encouraged to post online a pre-publication manuscript (but not the Publisher’s final formatted PDF version of the Work) in institutional repositories or on their Websites prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work. Any such posting made before acceptance and publication of the Work shall be updated upon publication to include a reference to the Publisher-assigned DOI (Digital Object Identifier) and a link to the online abstract for the final published Work in the Journal.

    6. Upon Publisher’s request, the Author agrees to furnish promptly to Publisher, at the Author’s own expense, written evidence of the permissions, licenses, and consents for use of third-party material included within the Work, except as determined by Publisher to be covered by the principles of Fair Use.

    7. The Author represents and warrants that:

      1. the Work is the Author’s original work;
      2. the Author has not transferred, and will not transfer, exclusive rights in the Work to any third party;
      3. the Work is not pending review or under consideration by another publisher;
      4. the Work has not previously been published;
      5. the Work contains no misrepresentation or infringement of the Work or property of other authors or third parties; and
      6. the Work contains no libel, invasion of privacy, or other unlawful matter.
         
    8. The Author agrees to indemnify and hold Publisher harmless from Author’s breach of the representations and warranties contained in Paragraph 6 above, as well as any claim or proceeding relating to Publisher’s use and publication of any content contained in the Work, including third-party content.