DNA Databanking: Selected Fourth Amendment Issues and Analysis

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DNA Databanking: Selected Fourth

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August 16, 2011

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R41847

CRS Report for Congress

Prepared for Members and Committees of Congress

DNA Databanking: Selected Fourth Amendment Issues and Analysis

Summary

Over the past few decades, state and federal lawmakers have promoted the development of

databases containing DNA (deoxyribonucleic acid) profiles for individuals who are under the

supervision of the criminal justice system due to their known or suspected involvement in a

felony or other qualifying crime. Congress has demonstrated concern toward some aspects of

DNA databanking by requiring expungement of a DNA profile in certain circumstances,

prohibiting most non-forensic uses of DNA profiles and databases, and restricting familial

searching. However, in general, Congress has taken a supportive attitude toward DNA

databanking and has incentivized the development, expansion, and integration of DNA databases.

As DNA database programs have widened in scope and grown in numbers, their consistency with

the Fourth Amendment’s prohibition on unreasonable searches and seizures has increasingly been

challenged. In the context of compulsory DNA collection, courts have widely upheld laws

mandating the collection of DNA from persons who were convicted and are subject to the penal

system’s custody or supervision. Far fewer cases have addressed whether DNA collection from

arrestees is also constitutional. The two federal circuit courts of appeals to hear the question

upheld the mandatory DNA profiling of indicted arrestees, but no federal court has assessed the

constitutionality of profiling arrestees in the absence of a judicial finding of probable cause.

Courts have generally upheld the use and permanent storage of a lawfully databanked DNA

profile. However, not all courts agree that any post-conviction use of those profiles is

constitutionally acceptable. In particular, observers are now raising questions about the Fourth

Amendment consistency of using databases for non-forensic purposes and for familial

searching—that is, using the DNA databases to locate potential relatives of an unidentified

suspect. Currently, these concerns are largely confined to the scholarly literature—they have not

come before a federal court—and are primarily centered on state database programs. Unlike some

state DNA databases, the National DNA Index System (NDIS) and the Combined DNA Index

System (CODIS) can not be used for either non-forensic research or intentional familial

searching. However, the increase in states that authorize familial searching suggests that it may

not be long before the constitutionality of familial searching comes before a federal court.

As these issues percolate up to the courts, new advances and revelations in the science of forensic

analysis and databanking may have potentially significant legal implications. Several courts have

suggested that new forensic techniques and scientific findings would require them to reevaluate

their legal conclusions and analysis. In particular, research into the scope and nature of the

information revealed by the “junk” DNA used in forensic analysis may alter how courts measure

the intrusiveness of DNA profiling if it suggests that “junk” DNA reveals more sensitive

information about its source than scientists previously thought.

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DNA Databanking: Selected Fourth Amendment Issues and Analysis

Contents

Introduction...................................................................................................................................... 1

Background on Law Enforcement Use of DNA .............................................................................. 2

Statutory Framework ....................................................................................................................... 4

Expansion of Statutory Authorities for DNA Profiling ............................................................. 5

Expungement Provisions ........................................................................................................... 7

Fourth Amendment Overview ......................................................................................................... 8

Search or Seizure....................................................................................................................... 8

“Reasonableness” Inquiry When the Fourth Amendment Applies............................................ 9

Collecting DNA ............................................................................................................................. 10

Prisoners, Parolees, Probationers, and Supervised Releasees ................................................. 11

Arrestees.................................................................................................................................. 12

Using and Retaining Databanked DNA......................................................................................... 13

Post-Sentence Privacy Rights.................................................................................................. 14

Informational Privacy Rights................................................................................................... 15

Academic Research and Non-forensic Information .......................................................... 16

Familial Searching and Information About Genetic Relationships................................... 17

Implications of New Research on Junk DNA................................................................................ 18

Conclusion ..................................................................................................................................... 19

Contacts

Author Contact Information........................................................................................................... 20

Acknowledgments ......................................................................................................................... 20

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DNA Databanking: Selected Fourth Amendment Issues and Analysis

Introduction

In recent years, state and federal laws have facilitated law enforcement’s expanded use of

deoxyribonucleic acid (DNA) for investigating and prosecuting crimes.1 These laws authorize

compulsory collection of biological matter, which local law enforcement agencies send to the

Federal Bureau of Investigation (FBI) for analysis. The FBI then stores unique DNA profiles in a

national distributive database, through which law enforcement officials match individuals to

crime scene evidence.

Early laws authorized compulsory extraction of DNA only from people convicted for violent or

sex-based felonies, such as murder, kidnapping, and offenses “related to sexual abuse”—crimes

associated with historically high recidivism rates and for which police were likely to find

evidence at crime scenes.2 However, in recent decades, new laws have greatly extended the scope

of compulsory DNA collection, both by expanding the range of offenses triggering collection

authority and, more recently, by authorizing compulsory collection from people who have been

arrested but not convicted.

Opponents of DNA databases suggest that DNA databases are “Orwellian” because of the amount

of information about private citizens that they put into the control of the government.3 The most

frequent criticism is that the programs violate the Fourth Amendment to the U.S. Constitution.4

Several federal courts have heard cases alleging that it is unconstitutional for an individual’s preor post-trial release to be conditioned on DNA collection. Another Fourth Amendment argument,

albeit a less litigated one, contends that it is unconstitutional to permit the use of databanked

DNA profiles for purposes other than identifying a genetic match with a suspect.

The Fourth Amendment protects individuals’ privacy from unreasonable searches and seizures by

the government. Federal courts have generally held that compulsory DNA collection from a

person who has been convicted of a felony or other qualifying crime and placed under the

supervision of the criminal justice system does not constitute an unreasonable search under the

For more on the progression of federal legislation authorizing use of DNA, see CRS Report R41800, DNA Testing in

Criminal Justice: Background, Current Law, Grants, and Issues, by (name redacted).

For example, offenses triggering DNA collection authority under the original DNA Analysis Backlog Elimination Act

of 2000, P.L. 106-546 (2000), included murder, voluntary manslaughter, and other offense relating to homicide;

offenses relating to sexual abuse, sexual exploitation or other abuse of children, or transportation for illegal sexual

activity; offenses relating to peonage and slavery; kidnapping; offenses involving robbery or burglary; certain offenses

committed within Indian territory; and attempt or conspiracy to commit any of the above offenses.

Banks v. United States, 490 F.3d 1178, 1180 (describing the arguments of DNA database critics as allusions “to a

police state reminiscent of George Orwell’s dystopia portrayed in 1984”). See, e.g., United States v. Sczubelek, 402

F.3d 175, 194 n.11 (3rd Cir. 2005) (McKee, J., dissenting) (characterizing the DNA Act as ushering in an “Orwellian

intrusion”); United States v. Kincade, 379 F.3d 813, 870 (9th Cir. 2004) (Reinhardt, J., dissenting) (“The compulsory

extraction of blood samples and the maintenance of permanent DNA profiles of American citizens is, unfortunately, the

beginning not the end. 1984 arrives twenty years later than predicted.”).

Litigants have also brought challenges under the Eighth and Fourteenth Amendments to the U.S. Constitution as well

as under other legal and constitutional theories. See Hon. Donald E. Shelton, Twenty-First Century Forensic Science

Challenges for Trial Judges in Criminal Cases: Where the Polybutadiene Meets the Bitumen, 18 WIDENER L. J. 309,

361-62 (2009) (listing different theories used to challenge the constitutionality of DNA database and compulsory

collection statutes). See also United States v. Pool, 645 F. Supp.2d 903 (9th Cir. 2009) (rejecting challenges under

Fourth, Fifth, and Eighth Amendments to the U.S. Constitution). However, this report is limited to a discussion of

challenges brought under the Fourth Amendment.

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DNA Databanking: Selected Fourth Amendment Issues and Analysis

Fourth Amendment.5 These courts found that a convicted felon has a diminished expectation of

privacy and that DNA profiling is a minimal intrusion into that privacy.6 Far fewer cases have

given the federal courts an opportunity to decide whether DNA collection from arrestees is also

constitutional. The two federal circuit courts of appeals to hear the question upheld the mandatory

DNA profiling of indicted arrestees, but no federal court has assessed the constitutionality of

profiling arrestees in the absence of a grand jury indictment or judicial finding of probable cause.

Similarly, the courts have not yet had an opportunity to articulate the constitutional limits on how

databanked DNA profiles may be used.

This report traces the expansion of the statutory authorities for DNA databases and identifies

emerging areas of consensus and discord among the federal courts over the Fourth Amendment

consistency of compulsory DNA collection and the use of DNA databases. It also predicts

additional Fourth Amendment issues that may come before both Congress and the federal courts

in the near future.

Background on Law Enforcement Use of DNA

DNA is a complex molecule found in the nucleus and mitochondria of an organism’s cells.7 It

consists of two strands of nucleotides, the sequence of which contains the information that forms

the basis of the human genetic code. The vast majority of human DNA is exactly the same, but

small variations in the sequencing of the nucleotides create people’s distinguishing

characteristics.8 Only identical twins share the same DNA profile.9

With the help of DNA profiling technology, forensic scientists can examine different regions—or

“loci”—of DNA to develop a DNA profile of the person from whom the DNA was extracted.10

Because forensic analysts examine a select group of loci, the resulting DNA profile may not

necessarily be unique to that individual.11 However, advances in technology have enabled

analysts to produce increasingly discriminating profiles. Today, the probability that two unrelated

E.g., United States v. Weikert, 504 F.3d 1 (1st Cir. 2007); United States v. Amerson, 483 F.3d 73 (2d Cir. 2007), cert.

denied 552 U.S. 1042 (2007); Wilson v. Collins, 517 F.3d 421 (6th Cir. 2006); United States v. Hook, 471 F.3d 766 (7th

Cir. 2006), cert. denied 549 U.S. 1343 (2007); United States v. Kraklio, 451 F.3d 922 (8th Cir. 2006), cert. denied 549

U.S. 1044 (2006); United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007); United States v. Banks, 490 F.3d 1178 (10th

Cir. 2007); United States v. Castillo-Lagos, 147 Fed. App’x. 71 (11th Cir. 2005).

See, e.g., Weikert, 504 F.3d at 27, 30-33 (finding that a convicted felon on supervised release “has a substantially

diminished expectation of privacy” and collecting a blood sample is a “minimal” intrusion that is not meaningfully

augmented by the government’s subsequent use of that sample to create and databank a DNA profile); Amerson, 483

F.3d at 29 (finding that the appellants have “diminished” expectations of privacy and the collection of their DNA for a

DNA database is a “small” intrusion of privacy).

For a more in-depth discussion of DNA and its use in law enforcement, see CRS Report R41800, DNA Testing in

Criminal Justice: Background, Current Law, Grants, and Issues, by (name redacted).

See Human Genome Program, U.S. Department of Energy, Primer on Molecular Genetics (Washington, DC, 1992),

http://www.ornl.gov/hgmis/publicat/primer/primer.pdf.

United States v. Kincade, 379 F.3d 813, 818 n.7 (9th Cir. 2004) (en banc), cert. denied, 544 U.S. 924 (2005).

In the United States, forensic scientists use “short tandem repeat” technology to analyze 13 DNA loci. Department of

Energy, Human Genome Project Information: DNA Forensics, at http://www.ornl.gov/sci/techresources/

Human_Genome/elsi/forensics.shtml.

NATIONAL POLICING IMPROVEMENT AGENCY, NATIONAL DNA DATABASE ANNUAL REPORT 2007-2009, 7 (2009).

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individuals would share a DNA profile derived from an uncontaminated sample of DNA from a

cell’s nucleus is estimated to be one in a billion at most.12

DNA profiles are often compared to fingerprints.13 As with fingerprints, law enforcement officers

collect DNA samples from specific classes of individuals, such as prisoners. However,

compulsory DNA collection generally entails blood or saliva samples rather than finger

impressions, and DNA profiles can later match any of many types of biological matter obtained

from crime scenes.14 For these reasons, DNA matching is considered a complement to, rather than

merely a supplement for, fingerprint analysis in identifying criminal suspects.15

The FBI administers DNA storage and analysis for law enforcement agencies across the country.

FBI analysts create DNA profiles by “decoding sequences of ‘junk DNA.’”16 So-called “junk

DNA” is the name for DNA loci that are “not presently recognized as being responsible for trait

coding.”17 Because junk DNA is not currently “associated with any known physical or medical

characteristics,” its use in forensic analysis prevents, at least for the time being, DNA profiles

from containing private or sensitive information about the subject.18

Typically, a law enforcement agency’s phlebotomist collects a blood or saliva sample from the

subject pursuant to state or federal law. The sample may then be analyzed and converted into a

DNA profile by a public laboratory (or outsourced by that public lab to a private one) that adheres

to the FBI’s Quality Assurance Standards.19 Assuming the laboratory and analyst that generated

the profile are adequately credentialed, the resulting DNA profile may then be entered into the

Combined DNA Index System (CODIS).20 CODIS includes DNA profile databases composed at

the local, state, and national levels.21 At the national level, the National DNA Index System

(NDIS) facilitates sharing of DNA profiles among participating law enforcement agencies

See id.; NATIONAL INSTITUTE OF JUSTICE, USING DNA TO SOLVE COLD CASES, 5-7 (2009), available at

http://www.ncjrs.gov/pdffiles1/nij/194197.pdf.

The term “DNA fingerprinting” was coined in 1985. L.A. Foreman et. al., Interpreting DNA Evidence: A Review, 71

INT’L STATISTICAL REVIEW 473, 474 (2003) (giving credit to a 1985 article in Nature for coining the term). However,

the analogy between fingerprinting and DNA profiling has since drawn criticism from both the legal and scientific

communities. See, e.g., Foreman, supra, at 474 (describing the term “DNA fingerprinting” as “misleading”); United

States v. Mitchell, 681 F. Supp.2d 597, 608 (W.D. Pa. 2009) (criticizing the comparison as “pure folly”). Given this

criticism, a frequently used argument against DNA databases is “genetic exceptionalism”—that is, the theory that DNA

profiles are fundamentally different from other types of identification and medical records. George J. Annas, Genetic

Privacy, in DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECHNOLOGY OF JUSTICE 135, at 136-37 (David Lazer ed.,

2004).

Under federal statute and analogous state laws, officials collect DNA from “tissue, fluid, or other bodily sample.” See

42 U.S.C. §14135a(c)(1). To facilitate especially “reliable” DNA analysis, FBI guidelines direct federal law

enforcement officials to rely on blood samples. See Kincade, 379 F.3d at 817.

DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. at 74933-34.

Amerson, 483 F.3d at 76.

Kincade, 379 F.3d at 818.

See id. at 818, 837 (suggesting that, by virtue of looking only at the subject’s junk DNA, the government’s invasion

of the subject’s privacy is minimal); H.R. Rep. No. 106-900 at 27.

JOHN M. BUTLER, FUNDAMENTALS OF FORENSIC DNA TYPING 270 (2010). In addition to signing a memorandum of

understanding agreeing to adhere to these standards, state laboratories submitting DNA profiles to the National DNA

Index System must also be accredited and audited annually. Id. at 271.

DNA INITIATIVE, COMBINED DNA INDEXING SYSTEM, http://www.dna.gov/dna-databases/codis.

DNA INITIATIVE, LEVELS OF THE DATABASE, http://www.dna.gov/dna-databases/levels.

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throughout the United States.22 At each level, profiles are categorized into forensic (crime scene)

profiles, offender profiles, and arrestee profiles.23

As of March 2011, NDIS contained over 9,535,059 offender profiles.24 CODIS is primarily

evaluated by the number of criminal investigations that CODIS aids.25 As of March 2011, CODIS

had assisted more than 135,500 investigations,26 suggesting that between 1% and 2% of all

samples taken from an offender have assisted a criminal investigation.27

Statutory Framework

The categories of individuals from whom law enforcement officials may require DNA samples

have expanded in recent years. The federal government and most states authorize compulsory

collection of DNA samples from individuals convicted for specified criminal offenses, including

all felonies in most jurisdictions and extending to misdemeanors, such as failure to register as a

sex offender or crimes for which a sentence greater than six months applies, in some

jurisdictions.28 In addition, the federal government and some states now authorize compulsory

collection from people whom the government has arrested or detained but not convicted. As

amended, the DNA Analysis Backlog Elimination Act 2000, discussed below, authorizes

compulsory collection from individuals in federal custody, including those detained, arrested, or

facing charges, and from individuals on release, parole, or probation in the federal criminal

justice system.29 Under the federal law, if an individual refuses to cooperate, relevant officials

“may use or authorize the use of such means as are reasonably necessary to detain, restrain, and

collect a DNA sample.”30 State laws vary, but nearly all states authorize compulsory DNA

collection from people convicted for specified crimes, and a small but growing number of states

also authorize compulsory collection from arrestees.31

See FEDERAL BUREAU OF INVESTIGATION, COMBINED DNA INDEX SYSTEM (CODIS), http://www.fbi.gov/about-us/lab/

codis/codis.

DNA Initiative, Levels of the Database, supra note 21.

FEDERAL BUREAU OF INVESTIGATION, CODIS—NDIS STATISTICS, http://www.fbi.gov/about-us/lab/codis/ndisstatistics.

Id.

See id. See also Michael T. Risher, Warrantless Collection of DNA From People Merely Accused of a Crime Raises

Not Only Privacy Concerns But Also Questions About Efficacy, 88 CRIM. L. REP. 320 (December 15, 2010) (stating

that, according to FBI statistics, the “hit” rate as of September 2010 was 1.4%). The FBI also breaks down the number

of offender profiles and investigations aided by state on its website. Federal Bureau of Investigation, CODIS—NDIS

Statistics, supra note 24. For a more detailed synthesis and overview of studies regarding the utility of DNA databases

to criminal investigations, see CRS Report R41800, DNA Testing in Criminal Justice: Background, Current Law,

Grants, and Issues, by (name redacted).

For more information on state laws regarding compulsory DNA collection, see NATIONAL CONFERENCE OF STATE

LEGISLATURES, CRIMINAL JUSTICE DNA DATABASE (2010), http://www.ncsl.org/default.aspx?tabid=21808..

42 U.S.C. §14135a. See also 18 U.S.C. §3142(b) (“The judicial officer shall order the pretrial release of the person

[charged with an offense] ... subject to [inter alia] the condition that the person cooperate in the collection of a DNA

sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis

Backlog Elimination Act of 2000 ...”).

42 U.S.C. §14135a(a)(4)(A).

See NATIONAL CONFERENCE OF STATE LEGISLATURES, CRIMINAL JUSTICE DNA DATABASE (2010),

http://www.ncsl.org/default.aspx?tabid=21808 (indicating 24 states that authorize DNA collection from arrestees).

(continued...)

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Expansion of Statutory Authorities for DNA Profiling

At the federal level, statutory authority for compulsory DNA collection has expanded relatively

rapidly. During the 1990s, a trio of federal laws created the logistical framework for DNA

collection, storage, and analysis. The DNA Identification Act of 1994 provided funding to law

enforcement agencies for DNA collection and created the FBI’s Combined DNA Index System to

facilitate the sharing of DNA information among law enforcement agencies.32 Next, the

Antiterrorism and Effective Death Penalty Act of 1996 authorized grants to states for developing

and upgrading DNA collection procedures,33 and the Crime Identification Technology Act of

1998 authorized additional funding for DNA analysis programs.34 The resulting framework

centers on CODIS; more than 180 law enforcement agencies throughout the country participate in

the system.35

In recent years, federal and state laws have expanded law enforcement authority for collecting

DNA in at least two ways. First, laws have increased the range of offenses which trigger authority

for collecting and analyzing DNA. In the federal context, the DNA Analysis Backlog Elimination

Act of 2000 limited compulsory extraction of DNA to people who had been convicted of a

“qualifying federal offense.”36 Under the original act, “qualifying federal offenses” included

limited but selected felonies, such as murder, kidnapping, and sexual exploitation.37 After

September 11, 2001, the USA PATRIOT Act expanded the “qualifying federal offense” definition

to include terrorism-related crimes.38 In 2004, the Justice for All Act further extended the

definition to reach all crimes of violence, all sexual abuse crimes, and all felonies.39 Similarly,

almost all states now authorize collection of DNA from people convicted of any felony.40

Second, laws have authorized compulsory DNA collection from people who have been detained

or arrested but not convicted on criminal charges. The DNA Fingerprinting Act of 2005

authorized collection “from individuals who are arrested or from non-U.S. persons who are

detained under the authority of the United States.”41 The Adam Walsh Child Protection and Safety

Act of 2006 subsequently substituted “arrested, facing charges, or convicted” for the word

“arrested” in that authority.42 The U.S. Department of Justice implementing regulations took

effect January 9, 2009.43 Mirroring the statutory language, it requires U.S. agencies to collect

(...continued)

However, many of the state laws authorizing collection from arrestees limit the scope of such collection to people

arrested for specified violent or serious crimes.

P.L. 103-322, 108 Stat. 2065 (1994) (codified at 42 U.S.C. §§14131-14134).

P.L. 104-132, 110 Stat. 1214 (1996).

P.L. 105-251, 112 Stat. 1871 (1998).

See FEDERAL BUREAU OF INVESTIGATION, CODIS BROCHURE, http://www.fbi.gov/about-us/lab/codis/codis_brochure.

42 U.S.C. §14135a(a)(1)(B).

P.L. 106-546, §3, 114 Stat. 2726, 2729-30 (2000).

P.L. 107-56, §503, 115 Stat. 272, 364 (2001).

P.L. 108-405, §203(b), 118 Stat. 2260, 2270 (2004) (codified at 42 U.S.C. §14135a(a)(2)).

See NATIONAL CONFERENCE OF STATE LEGISLATURES, CRIMINAL JUSTICE DNA DATABASE (2010),

http://www.ncsl.org/default.aspx?tabid=21808.

DNA Fingerprint Act of 2005, Tit. X, P.L. 109-162, 119 Stat. 2960. 42 U.S.C. §14135a(a)(1).

Adam Walsh Child Protection and Safety Act of 2006, sec. 155, P.L. 109-248, 120 Stat. 587 (2006) (codified at 42

U.S.C. §14135a(a)(1)).

DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. at 74,932,

(continued...)

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DNA samples from “individuals who are arrested, facing charges, or convicted, and from nonUnited States persons who are detained under authority of the United States.”44 As mentioned,

some states have likewise enacted laws authorizing collection of arrestees’ DNA.45 Legislation

was proposed in both the 111th and 112th Congress to provide incentives to encourage states to

establish processes for collecting DNA from persons arrested for specified state offenses.46

As discussed below, courts measure the intrusiveness of DNA databanking programs by

considering both the circumstances under which a DNA profile was collected and the uses to

which that DNA profile can be put upon its inclusion in a database. It is, therefore, noteworthy

that, in addition to expanding the number and variety of circumstances under which DNA

profiling is statutorily required, policymakers have expanded the number and variety of purposes

for which databanked profiles can be used. In particular, the number of states that permit “familial

searching” is increasing. Familial searching is a DNA database search method based on “partial

matches” between the DNA profile searched and one—or several—of the DNA profiles in the

database.47 By contrast, a “routine” search of a DNA database compares a complete, wellpreserved DNA sample from a single source with the databanked profiles.48 It is also a “high

stringency” search, which means that it is a very discriminating search intended to produce only a

“direct match.”49 However, in some circumstances, a crime laboratory seeking to perform a

routine search may find it necessary to conduct a lower stringency search, perhaps because the

DNA sample being processed is degraded.50 In that case, the search could generate partial

matches that are less accurate than a direct match at predicting the identity of the sample’s

source.51

(...continued)

74,935.

28 C.F.R. §28.12(b).

See, e.g., Kan. Stat. Ann. §21-2511(e)(2) (authorizing DNA collection from individuals arrested for any felony or

certain other crimes); N.M. Stat. §29-16-6(B) (authorizing collection of DNA samples from individuals arrested for

specific violent felonies); Va. Code Ann. §19.2-310.2:1 (requiring collection of DNA samples from “arrested for the

commission or attempted commission of a violent felony”).

Katie Sepich Enhanced DNA Collection Act of 2011, H.R. 988, 112th Cong. (2011); Katie Sepich Enhanced DNA

Collection Act of 2011, S. 517, 112th Cong. (2011); Katie Sepich Enhanced DNA Collection Act of 2010, H.R. 4614,

111th Cong. (as passed the House, May 18, 2010). Specifically, the legislation would authorize incentive grants and

bonus payments for states that institute a “minimum” or “enhanced” “DNA collection process,” respectively. A

“minimum” process entails searching the federal DNA database “at least one time” against samples from individuals

“arrested for or charged with” specified types of state offenses, such as those including an element of sexual contact

that are punishable by at least five years imprisonment. An “enhanced” process requires the collection of samples, to be

included in the federal database, from individuals “arrested for or charged with” a broader range of state law offenses,

such as those with a sexual conduct element that are punishable by more than one year imprisonment. For an overview

of existing federal grant programs related to the collection and law enforcement use of DNA, see CRS Report R41800,

DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues, by (name redacted).

See FEDERAL BUREAU OF INVESTIGATION, FREQUENTLY ASKED QUESTIONS (FAQS) ON THE CODIS PROGRAM AND THE

NATIONAL DNA INDEX SYSTEM, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet.

See id.; Jessica D. Gabel, Probable Cause from Probable Bonds: A Genetic Tattle Tale Based on Familial DNA, 21

HASTINGS WOMEN’S L. J. 3, 17-18 (2010).

See FBI, supra note 47; Gabel, supra note 48, at 17.

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In some states, partial matches may be recorded and used in a criminal investigation.52 Although

some commentators characterize this method of generating partial matches as a type of familial

searching, the FBI does not.53 According to the FBI, familial searching entails taking a complete

and well-preserved DNA sample from a single source and, usually after conducting an

unsuccessful high stringency search, conducting a lower stringency search with the intent of

generating partial matches.54 In other words, under the FBI’s definition, a familial search is a

deliberate database search for potential relatives of the suspect—not for the suspect himself.55

These searches may not be conducted in the National DNA Index System (NDIS),56 but the FBI

has developed provisional procedures for authorizing the release of inadvertently obtained partial

match information to law enforcement.57 As for state databases, some states prohibit familial

searching by law58 or by informal policy,59 while others have permitted it.60

Expungement Provisions

Although Congress has encouraged DNA databanking, it has also constrained the government’s

authority to use and retain all DNA profiles indefinitely. In particular, federal law mandates

expungement of DNA samples upon an arrestee’s showing of discharge or acquittal or a convict’s

showing that the conviction was overturned.61 These provisions apply to DNA collected by state

and local law enforcement officers, in addition to DNA collected in the federal justice or

detention systems. However, DNA profiles of convicts who complete their sentences are not

eligible for expungement under federal law.

Expungement occurs upon written request; it does not occur automatically.62 To have a DNA

profile expunged from the database, its source must submit, in addition to the written request, a

For a map of states that permit partial matching and familial searching and those that do not, see COUNCIL FOR

RESPONSIBLE GENETICS, STATE RULES ON PARTIAL/FAMILIAL SEARCHING,

http://www.councilforresponsiblegenetics.org/dnadata/usa/usa2.html.

See FBI, supra note 47; Gabel, supra note 48, at 17. See also Natalie Ram, DNA Confidential, SCIENCE PROGRESS

(November 2, 2009), available at http://www.scienceprogress.org/2009/11/dna-confidential (referring to this method as

“partial match reporting” rather than “familial searching”).

FBI, supra note 47. See Gabel, supra note 48, at 18.

See Gabel, supra note 48, at 18.

FBI, supra note 47. See Gabel, supra note 48, at 18.

FBI, supra note 47; U.S. Department of Justice, Federal Bureau of Investigation Interim Plan for the Release of

Information In the Event of a “Partial Match” at NDIS, (July 20, 2006), http://www.bioforensics.com/conference08/

Familial_Searches/CODIS_Bulletin.pdf.

See, e.g., MD. CODE ANN., Public Safety, §2-506(d) (prohibiting searches of the state DNA database “for the purpose

of identification of an offender in connection with a crime for which the offender may be a biological relative of the

individual from whom the DNA sample was acquired”).

According to the Council for Responsible Genetics, several states, including Alaska, Maine, Michigan, and Vermont,

include prohibitions on either partial match or familial searching in lab manuals. Council for Responsible Genetics,

supra note 52. See also Ram, supra note 53 (stating that research revealed that at least 12 states have unwritten policies

on partial match reporting or familial searching).

See, e.g., Press Release, Governor McDonnell Announces Virginia Department of Forensic Science to Begin Using

Familial DNA Searches in Virginia (March 21, 2011), available at http://www.governor.virginia.gov/News/

viewRelease.cfm?id=648 (announcing that the Virginia Department of Forensic Science developed the capability to

perform familial searches and issued a policy for considering requests from law enforcement officials to conduct these

searches).

42 U.S.C. §14132(d).

See FEDERAL BUREAU OF INVESTIGATION, CODIS—EXPUNGEMENT POLICY, http://www.fbi.gov/about-us/lab/codis/

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certified copy of a final court order establishing that the conviction was overturned or that

charges were dismissed, not filed, or resulted in acquittal.63

Fourth Amendment Overview

The Fourth Amendment to the U.S. Constitution provides a right “of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures.”64 Two

fundamental questions arise in every Fourth Amendment challenge. First, does the challenged

action constitute a search or seizure by federal or local government and thus trigger the Fourth

Amendment right?65 Second, if so, is the search or seizure “reasonable”?

Search or Seizure

Different tests trigger the Fourth Amendment right depending on whether a litigant challenges

government conduct as a seizure or as a search. Seizures involve interference with property

rights; a seizure of property occurs when government action “meaningfully interferes” with

possessory interests or freedom of movement.66

In contrast, searches interfere with personal privacy. Government action constitutes a search when

it intrudes upon a person’s “reasonable expectation of privacy.”67 A reasonable expectation of

privacy requires both that an “individual manifested a subjective expectation of privacy in the

searched object” and that “society is willing to recognize that expectation as reasonable.”68

In general, people have no reasonable expectation of privacy for physical characteristics they

“knowingly expos[e] to the public.”69 In evaluating whether people “knowingly expose”

identifying characteristics, the Supreme Court has sometimes distinguished the drawing of blood

and other internal fluids from the taking of fingerprints. At times, it has signaled that people lack

a reasonable expectation of privacy in their fingerprints,70 but it has held that extraction of blood,

(...continued)

codis_expungement. See also Sonia M. Suter, All in the Family: Privacy and DNA Familial Searching, 26 HARV. J. L.

& TECH. 309, 341 (2010) (stating that exonerated arrestees and offenders may not be informed about the possibility of

having their DNA records expunged and, even if they are, the procedures for getting the profile expunged may be

overly burdensome).

42 U.S.C. §14132(d). See also FBI, supra note 62 (detailing procedures for expungement).

U.S. CONST. amend. IV.

Courts have applied the Fourth Amendment to state and local government actions since 1961, when, in Mapp v.

Ohio, the Supreme Court interpreted the Fourteenth Amendment as having incorporated the Fourth Amendment to the

states. 367 U.S. 643, 655 (1961).

See United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J., concurring in result); Michigan v. Summers, 452

U.S. 692, 696 (1981).

Some justices and experts have noted the circularity of the combination of this definition and the general Fourth

Amendment “reasonableness” inquiry. See, e.g., Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring).

However, such criticisms have not yet caused the Court to reconsider its test, except perhaps for the narrow category of

interiors of homes, for which the Court has found a near-automatic reasonable expectation of privacy by virtue of

privacy in the home having “roots deep in the common law.” See Kyllo v. United States, 533 U.S. 27, 34 (2001).

Kyllo, 533 U.S. at 33 (citing California v. Ciraolo, 476 U.S. 207, 211 (1986)).

Katz v. United States, 389 U.S. 347, 351 (1967).

See, e.g., Davis v. Mississippi, 394 U.S. 721, 727 (1969) (“Fingerprinting involves none of the probing into an

(continued...)

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urine, and other fluids implicates an intrusion upon a reasonable expectation of privacy,

presumably because the former category is “knowingly exposed” to the public while the latter

category generally is not.71

Under modern Supreme Court precedent, a further complicating factor is that reasonable

expectation of privacy depends not only on the type of evidence gathered, but also on the status of

the person from whom it is gathered. The inquiry is not simply a yes-or-no determination, but

appears to include a continuum of privacy expectations. For example, in United States v.

Knights,72 the Court held that the “condition” of probation “significantly diminished” a

probationer’s reasonable expectation of privacy.73 This diminished privacy expectation did not

completely negate the probationer’s Fourth Amendment right; however, it affected the outcome

under the Court’s Fourth Amendment balancing test.74

“Reasonableness” Inquiry When the Fourth Amendment Applies

When government action constitutes a search or seizure, “reasonableness” is the “touchstone” of

constitutionality.75 A search by law enforcement officers is reasonable if supported by a warrant

backed by probable cause.76 However, some searches do not need to meet this warrant standard.

For example, searches that entail only a limited intrusion of the suspect’s privacy, such as a patdown, satisfy Fourth Amendment strictures if justified by “reasonable suspicion” based on

“specific reasonable inferences.”77 Courts have generally analyzed the Fourth Amendment

consistency of DNA databanking programs under yet another reasonableness test: the “general

balancing,” or “totality-of-the-circumstances” test, which determines the constitutionality of

certain “suspicionless” searches that the courts have deemed particularly non-intrusive and/or

necessary.78 This general balancing test weighs the “degree to which [a search or seizure] intrudes

upon an individual’s privacy” with “the degree to which it is needed for the promotion of

legitimate governmental interests.”79

(...continued)

individual’s private life and thoughts that marks an interrogation or search.”). Later, in Hayes v. Florida, the Supreme

Court seemed to suggest that fingerprinting does constitute a search, 470 U.S. 811, 814 (1985) (referring to

fingerprinting as less intrusive than other types of searches and seizures), a shift in keeping with the Court’s broader

trend toward classifying more activity as constituting a search and leaving the heart of the constitutional analysis for the

Fourth Amendment “reasonableness” inquiry. Thus, it appears that although the Court views the drawing of blood as a

greater intrusion than fingerprinting, both activities now qualify as searches.

See, e.g., Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (“We have long recognized that a

‘compelled intrusio[n] into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth

Amendment search” (quoting Schmerber v. California, 384 U.S. 757, 767-768 (1966)).

534 U.S. 112 (2001).

Id. at 119-120.

Id.

Id. at 118.

See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Alabama v. White, 496 U.S. 325, 330 (1990); Terry v. Ohio, 392 U.S. 1, 21-22, 27 (1968).

See, e.g., United States v. Pool, 621 F.3d 1213, 1218-19 (9th Cir. 2010); Wilson v. Collins, 517 F.3d 421, 426 (6th

Cir. 2008).

Samson v. California, 547 U.S. 843, 848 (2006).

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Historically, courts used the general reasonableness test in three situations: (1) when a routine,

administrative purpose justified regular searches; (2) where a long-recognized warrant exception

existed, such as for border searches; and (3) where a “special nee[d], beyond the normal need for

law enforcement, [made] the warrant and probable cause requirements impracticable.”80 Recently,

the Supreme Court cast its Fourth Amendment analysis in “totality-of-the-circumstances” terms

in addressing a suspicionless search of a parolee’s pockets. In that case, Samson v. California,81

the Court seemed to apply the general balancing test because the petitioner, as a parolee, had

diminished legitimate expectations of privacy that were easily outweighed by the state’s

substantial interests.82 In other words, the Court found that the search was particularly nonintrusive because the petitioner was subject to the penal system’s supervision.

The status of a search’s subject within the penal system is now an accepted justification for

evaluating the Fourth Amendment consistency of that search under the general reasonableness

test.83 Notably, however, while prisoners, parolees, probationers, and supervised releasees all have

diminished privacy rights, their privacy rights are not all diminished equally. Instead, the privacy

rights of prisoners, parolees, probationers, and supervised releasees exist on a spectrum.84

Prisoners have virtually no privacy rights but each subsequent category has slightly greater

privacy rights than the one preceding it.

Collecting DNA

The Supreme Court has not accepted a case reviewing a compulsory DNA collection statute.

However, the courts have uniformly held that compulsory DNA collection and analysis

constitutes a search, and thus triggers Fourth Amendment rights.85 Accordingly, compulsory DNA

collection and profiling laws violate the Fourth Amendment if they fail the reasonableness test.

Griffin v. Wisconsin, 483 U.S. 868, 873 (1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun,

J., concurring)).

547 U.S. 843 (2006).

Id. at 847, 847 n.1.

See id. See also United States v. Knights, 534 U.S. 112, 114-120 (2001) (evaluating a warrantless search of a

probationer’s home under the general reasonableness test because the conditions placed on his probation significantly

diminished the reasonableness of his expectation of privacy); Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1986)

(applying the general reasonableness test to a search of a person’s home because the person was on probation).

See, e.g., Wilson v. Collins, 517 F.3d 421, 425 n.2, 426-27 (6th Cir. 2008) (describing a “privacy continuum” on

which “a parolee ... has less diminished privacy rights than a prisoner”). Parole and supervised release are sometimes

conflated, but they represent two distinct forms of post-incarceration supervision by the state. See UNITED STATES

SENTENCING COMMISSION, 2010 FEDERAL SENTENCING GUIDELINES MANUAL 484 (2010), available at

http://www.ussc.gov/Guidelines/2010_guidelines/ToC_PDF.cfm. Whereas parolees are on release from incarceration

before the end of their sentence, supervised releasees are serving a term of state supervision after their initial term of

incarceration. See id.

See, e.g., United States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007), cert. denied 552 U.S. 1042 (2007) (“It is settled

law that DNA indexing statutes, because they authorize both a physical intrusion to obtain a tissue sample and a

chemical analysis to obtain private physiological information about a person, are subject to the strictures of the Fourth

Amendment.”).

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Prisoners, Parolees, Probationers, and Supervised Releasees

As stated, on the “privacy continuum” prisoners, parolees, probationers, and supervised releasees

share diminished, but not necessarily equivalent, privacy rights.86 Moreover, according to the

federal appeals courts, the privacy rights of all four types of convicted offenders are diminished to

such an extent that they have no reasonable expectation of privacy in their DNA or DNA profile.87

Indeed, the vast majority of U.S. Courts of Appeals have upheld either the federal law mandating

DNA collection and analysis from prisoners, parolees, and probationers or a similar state law.88

In these cases, the only source of conflict between the courts appears to be the appropriate

rationale for evaluating these laws under the “totality-of-the-circumstances” test.89 A majority of

courts use the state’s court-ordered supervision of the subject as their sole rationale for applying

this standard.90 However, some federal circuit courts of appeals have applied the traditional

special needs methodology, assessing whether the collection of the subject’s DNA was justified

by a “special need beyond the ordinary needs of normal law enforcement” before evaluating

whether the government’s acquisition and use of the subject’s DNA was reasonable under the

totality of the circumstances.91 Although courts have noted this analytical distinction, it may have

no practical import because, regardless of the standard applied, courts have consistently upheld

compulsory post-conviction DNA collection laws.92

See Wilson, 517 F.3d at 425 n.2.

See, e.g., United States v. Weikert, 504 F.3d 1, 3 (1st Cir. 2007) (upholding provision of the federal law mandating

DNA collection from a supervised releasee); United States v. Amerson, 483 F.3d 73, 89 (2d Cir. 2007) (upholding

provisions of the federal law mandating DNA collection from a probationer); Wilson, 517 F.3d at 423 (upholding a

state law mandating DNA collection from a prisoner).

E.g., Weikert, 504 F.3d at 3 (holding for the First Circuit that the federal law is consistent with the U.S. Constitution);

Amerson, 483 F.3d at 89 (upholding the federal law), cert. denied 552 U.S. 1042 (2007); United States v. Hook, 471

F.3d 766 (7th Cir. 2006) (upholding the federal law), cert. denied 549 U.S. 1343 (2007); United States v. Kraklio, 451

F.3d 922 (8th Cir. 2006) (upholding the federal law), cert. denied 549 U.S. 1044 (2006); United States v. Kriesel, 508

F.3d 941, 942 (9th Cir. 2007) (upholding the federal law); United States v. Banks, 490 F.3d 1178 (10th Cir. 2007)

(upholding the federal law); United States v. Castillo-Lagos, 147 Fed. App’x. 71 (11th Cir. 2005) (upholding the federal

law); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (upholding the Virginia statute). See also Padgett v. Donald, 401

F.3d 1273 (11th Cir. 2005) (upholding the Georgia statute); Green v. Berge, 354 F.3d 675 (7th Cir. 2004) (upholding the

Wisconsin statute); Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) (upholding the Oklahoma statute); Schlicher v.

Peters, 103 F.3d 940 (10th Cir. 1996) (upholding the Kansas statute); Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996)

(upholding the Colorado statute).

See Amerson, 483 F.3d at 78 (stating that the courts have nearly unanimously upheld state and federal DNA

databanking laws, but, in doing so, have used two different approaches); Kraklio, 451 F.3d at 924 (“The only

disagreement among the circuits is what analytical approach to use in upholding the [DNA collection] statutes.”);

United States v. Kincade, 379 F.3d 813, 830-31 (9th Cir. 2004) (“Confronted with challenges to the federal DNA Act

and its state law analogues, our sister circuits and peers in the states have divided in their analytical approaches”

between a traditional special needs analysis and a direct assessment of reasonableness).

See, e.g., Wilson, 517 F.3d at 426 (finding that the direct application of the general balancing test is appropriate in a

case involving a prisoner). See also Amerson, 483 F.3d at 78 (describing the Second Circuit’s insistence on the

traditional special needs test methodology as in conflict with the Third, Fourth, Fifth, Ninth, and Eleventh Circuits).

See, e.g., Amerson, 483 F.3d at 78-80 (articulating the traditional methodology of a special needs test, justifying its

application to compulsory DNA collection laws, and applying it).

See, e.g., Wilson, 517 F.3d at 427 n. 4 (“Even if we were to apply the more stringent special-needs test, there is no

reason to believe the ultimate result would be different.”).

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Arrestees

To date, only a handful of state93 and federal94 judicial decisions address compulsory collection of

DNA from persons awaiting a criminal trial, making it difficult to draw conclusions about the

constitutionality of this policy. However, recently two federal circuit courts of appeals—the Ninth

Circuit and the Third Circuit—held that conditioning an arrestee’s pre-trial release on DNA

sampling is consistent with the Fourth Amendment. These cases may indicate the approach to this

question that other federal circuits are likely to take.

In United States v. Mitchell95 and United States v. Pool,96 the Third and Ninth Circuits

respectively upheld the government’s request of a criminal arrestee’s DNA sample after the

arrestee had been indicted but before trial.97 Both applied the general reasonableness test on the

grounds that the subject of the DNA profile was an arrestee and therefore had sufficiently

diminished privacy rights to be subjected to reasonable suspicionless searches.98

The courts also adopted similar views of the extent to which (1) the arrestee’s privacy rights were

diminished because of the probable cause determination justifying arrest; (2) DNA collection and

databanking intruded upon a person’s privacy interests; and (3) DNA profiling served a

substantial government interest.

In both cases, the arrestee had been indicted by a grand jury prior to his arrest. For the Ninth

Circuit, Pool’s indictment was a “watershed event” after which the arrestees’ privacy rights were

so diminished as to make warrantless and suspicionless searches reasonable.99 The Third Circuit,

This report focuses on federal court decisions, but several state courts have also reviewed the collection of DNA

from arrestees, with mixed results. For example, the Virginia Supreme Court upheld Virginia’s statute authorizing

DNA collection from arrestees. Anderson v. Virginia, 650 S.E.2d 702 (Vir. 2006), cert. denied, 553 U.S. 1054 (2008).

In contrast, the Minnesota Court of Appeals held that a state law authorizing collection of a DNA sample “upon a

finding of probable cause, but before any conviction …” violated the Fourth Amendment to the U.S. Constitution and

Article 1, Section 10 of the Minnesota Constitution. In the Matter of the Welfare of C.T.L., 722 N.W.2d 484, 486

(Minn. Ct. App. 2006).

In addition to the two federal district court cases discussed in this report, two other federal judicial decisions, both

issued in December 2009, are of interest. First, in Friedman v. Boucher, the U.S. Court of Appeals for the Ninth Circuit

denied Nevada police officers’ motion for qualified immunity where the officers, acting on their own volition rather

than pursuant to any state or federal law, forced the collection of DNA from a man in pre-trial detention for the purpose

of comparing his DNA to evidence available in “cold cases.” 580 F.3d 847 (9th Cir. 2009). The Ninth Circuit

emphasized the lack of statutory authority and the absence of a strong governmental interest in the case. Given those

fact-specific underpinnings for its decision, it is unclear whether the Ninth Circuit’s rationale would apply in a future

case in which statutory authority and a different governmental interest existed. Second, in Haskell v. Brown, the U.S.

District Court for the Northern District of California denied a motion to enjoin the enforcement of a California statute

requiring the collection of DNA from adults arrested for felony offenses. 677 F. Supp. 2d 1187 (N.D.Cal. 2009).

Because the case arose at the preliminary injunction stage, it is unclear how much weight the decision might have on a

future challenge to California’s law.

United States v. Mitchell, No. 09-4718, 2011 U.S. App. LEXIS 15272 (3d Cir. July 25, 2011), rev’g 681 F.Supp.2d

597 (W.D.Pa. 2009).

United States v. Pool, 621 F.3d 1213 (9th Cir. 2010), aff’g 645 F. Supp.2d 903 (E.D. Cal. 2009).

In Pool, the defendant was granted pre-trial release. For that reason, a provision of the Bail Reform Act, 18 U.S.C.

§3142(b), which requires DNA collection as a condition of pre-trial release, provided a supplementary basis of

statutory authority.

See Mitchell, 2011 U.S. App. LEXIS at *43; Pool, 621 F.3d at 1218-19 (writing that the judicial or grand jury

finding of probable cause for an arrest was a “watershed event” after which arrestees’ privacy rights were so

diminished as to make certain suspicionless searches reasonable).

Pool, 621 F.3d at 1218-19.

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however, left undecided whether grand jury indictment—or a judicial finding of probable cause—

was a necessary prerequisite for finding that the arrestee had substantially reduced privacy

rights.100 This suggests that, in future cases, courts might find that a person who is detained solely

upon the arresting officer’s finding of probable cause might have greater privacy rights in his

DNA profile than either Mitchell or Pool.101

On the extent of the privacy intrusion, both courts characterized DNA profiling as no more

intrusive than fingerprinting or photographing a suspect.102 In adopting this position, the Third

Circuit rejected the lower court’s description of DNA collection as an act of “information

science”—a “quantum leap” in terms of intrusiveness from the “identification science” involved

in fingerprinting.103 Having determined that the only intrusion entailed in DNA collection was the

identification of the arrestee, the Third Circuit wrote that the indictment and subsequent arrest of

a person deprives the arrestee of any legitimate privacy right in anonymity.104

The Third and Ninth Circuits also agreed that the government’s interests in DNA databanking are

sufficiently important to outweigh any privacy intrusion created by DNA collection. In Pool, the

Ninth Circuit stated that the government had two “substantial” interests in DNA profiling: (1)

identifying the arrestee so as to determine who is in government custody and whether that person

may have been involved in other crimes; and (2) discouraging the arrestee from violating the

conditions of pre-trial release.105 The Third Circuit in Mitchell characterized the “most

compelling” government interest as the accurate identification of arrestees, reasoning that this

information helps the state determine whether or not the arrestee should be detained pending

trial.106 Moreover, the Third Circuit wrote, the government needs this information “as soon as

possible,” which means that the government’s interest in identifying the arrestee is not served

equally well by collecting his DNA after conviction rather than before it.107

Using and Retaining Databanked DNA

In addition to the constitutionality of compulsory DNA collection, a second set of emerging

Fourth Amendment issues with DNA database programs concerns the retention and use of DNA

samples and profiles. For example, in United States v. Mitchell,108 discussed above,109 the arrestee

argued that the indefinite retention of his DNA profile would violate the Fourth Amendment.110

However, the Third Circuit declined to reach the merits of his argument because Mitchell’s DNA

100

Mitchell, 2011 U.S. App. LEXIS at *71, n.22 (“[W]e need not reach the question of whether any additional probable

cause requirement other than the requirements inherent in the statute—that an individual is arrested—is necessary.”).

101

See id.

102

Id. at 2011 U.S. App. LEXIS at *64-65; Pool, 621 F.3d at 1221-22.

103

Mitchell, 681 F.Supp.2d at 609.

104

See id.

105

Pool, 621 F.3d at 1223.

106

Id. at 76, 79.

107

Id. at 79-80.

108

United States v. Mitchell, No. 09-4718, 2011 U.S. App. LEXIS 15272 (3d Cir. July 25, 2011).

109

Supra notes 95-107 and accompanying text.

110

Mitchell, 2011 U.S. App. LEXIS at *71-72.

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sample had not yet been collected, rendering its potential retention not yet ripe for judicial

review.111

Federal law requires the FBI to expunge DNA profiles for people who receive acquittals or whose

convictions are overturned.112 Courts have pointed to these provisions as reducing the

intrusiveness of collecting DNA samples from arrestees.113 This case law suggests that sources of

lawfully collected and databanked DNA maintain some degree of privacy interests in their DNA

profiles. However, it is not clear whether convicted felons retain those rights as well, and, if they

do, what types of actions would unreasonably intrude upon those rights.

Post-Sentence Privacy Rights

The federal expungement provisions do not address storage of DNA from people who have

successfully completed their sentences. Rather, once a person’s DNA profile has been entered into

CODIS database, “police at any level of government with a general criminal investigative interest

... can tap into that DNA without any consent, suspicion, or warrant, long after his period of

supervised release ends.”114 Convicted felons who have completed their sentences have initiated

Fourth Amendment challenges to the government’s indefinite storage of their DNA profiles and

samples.115 However, few courts have been convinced by their arguments. In particular, judicial

skepticism of genetic exceptionalism has made it difficult for defendants to overcome the

established constitutionality of the government’s indefinite retention of fingerprints and other

identification records of convicted felons.116

Nevertheless, like the cases over DNA collection from an arrestee, cases upholding the

government’s use and storage of databanked DNA after its source completes his sentence diverge.

In particular, dicta in state and federal court opinions augur judicial divergence over the extent to

which an offender retains privacy rights in his DNA sample and profile after his full release from

the penal system.

111

Id. at 72.

42 U.S.C. §14132(d).

113

See, e.g., Pool, 621 F.3d at 1227 n.16 (“The alleged intrusion on any of Pool’s rights is also reduced by the

provision that the DNA sample may be expunged if he is not found guilty or his case is dismissed.”).

114

United States v. Kriesel, 508 F.3d 941, 952 (9th Cir. 2007).

115

See, e.g., Boroian v. Mueller, 616 F.3d 60, 68 n.6 (1st Cir. 2010); United States v. Amerson, 483 F.3d 73 (2d Cir.

2007); Johnson v. Quander, 440 F.3d 489, 499 (D.C. Cir. 2006).

116

See, e.g., Boroian, 616 F.3d at 67 (“[I]dentification records of convicted felons, such as fingerprints or mugshots,

are routinely retained by the government after their sentences are complete and may be expunged only in narrowly

defined circumstances ... [P]recedents hold that the government’s matching of a lawfully obtained identification record

against other records in its lawful possession does not infringe on an individual’s legitimate expectation of privacy.”);

United States v. Amerson, 483 F.3d 73, 86 (2d Cir. 2007) (“[I]t is well established that the state need not destroy

records of identification—such as fingerprints, photographs, etc.—of convicted felons, once their sentences are up. The

same applies to DNA.”); Johnson v. Quander, 440 F.3d 489, 499 (D.C. Cir. 2006) (“Police departments across the

country could face an intolerable burden if every ‘search’ of an ordinary fingerprint database were subject to Fourth

Amendment challenges. The same applies to DNA fingerprints ... CODIS operates much like an old-fashioned

fingerprint database (albeit more efficiently).”). See also Stevenson v. United States, 380 F.2d 590 (D.C. Cir.), cert.

denied, 389 U.S. 962 (1967) (holding that a defendant had no constitutional right to the expungement of his mugshots

and fingerprints after his conviction was set aside).

112

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The First Circuit acknowledged this apparent dissensus in its 2010 case, Boroian v. Mueller.117 In

that case, the court upheld the government’s indefinite retention and periodic matching of a

felon’s DNA after his sentence was completed.118 However, it also expressly refused to hold “as

some courts have suggested” that, upon a DNA sample’s lawful extraction and databanking, its

source “loses a reasonable expectation of privacy with respect to any subsequent use of that

profile.”119 Instead, the First Circuit ruled that, once a qualified offender’s DNA “profile has been

lawfully created and entered into CODIS ... the FBI’s retention and periodic matching of the

profile against other profiles in CODIS for the purpose of identification is not an intrusion on the

offender’s legitimate expectation of privacy.”120 In other words, Boroian suggests that there could

be circumstances in which the post-sentence retention and use of a DNA profile violate its

source’s reasonable expectation of privacy.

As the First Circuit in Boroian pointed out, however, several state courts have not reached such a

limiting conclusion,121 and their more expansive view may have support within the federal

judiciary. For example, the Supreme Court of the State of Hawaii held in State v. Hauge122 that

“once a blood sample and DNA profile is lawfully procured from a defendant, no privacy interest

... in either the sample or the profile” prevents its indefinite use and retention by the

government.123 Significantly, Judge Easterbrook of the U.S. Court of Appeals for the Seventh

Circuit expressed support for this perspective in his concurrence in the 2004 case Green v.

Berge,124 in which he wrote that lawfully obtained DNA samples may be put to a wide variety of

uses beyond indefinite storage and periodic matching because “the Fourth Amendment does not

control how properly collected information is deployed.”125

Informational Privacy Rights

The difference between the First Circuit’s view in Boroian and Judge Easterbrook’s opinion in

Green has significant implications for the potential uses of DNA databases and the information

they contain. Database opponents characterize laws that authorize or condone the use of DNA

databases to research anything other than a suspect’s identity as making the database program

particularly intrusive.126 Although these concerns have yet to form the basis of a Fourth

117

616 F.3d 60 (1st Cir. 2010).

118

Id. at 68.

119

Id. (emphasis in original).

120

Id.

121

Id. See also State v. Hauge, 79 P.3d 131, 144 (Haw. 2003) (holding that the defendant had no reasonable privacy

interest in his DNA sample or profile after it had been lawfully collected); Patterson v. State, 742 N.E.2d 4, 16-17 (Ind.

Ct. App. 2000) (“[S]ociety is not prepared to recognize as reasonable [the defendant’s] continued expectation of

privacy in blood samples lawfully collected by police” (emphasis in original)).

122

79 P.3d 131 (Haw. 2003)

123

Id. at 144 (Haw. 2003) (emphasis added).

124

354 F.3d 675 (7th Cir. 2004) (Easterbook, J., concurring).

125

Id. at 680.

126

See, e.g., Sonia M. Suter, supra note 62, at 335 (contending that familial searching could unlawfully invade the

privacy of the “offender or arrestee, his family members, and the family itself” and expressing concern over the

possibility that, in some states, a DNA database could be used to conduct research on its sources’ traits and diseases);

Gabel, supra note 48, at 4-5 (arguing that cases involving familial DNA searches “raise legitimate concerns about the

rise of the silent informant” and “represent a troubling addition to the increasing collection, retention, and use of

genetic information”). See also Memorandum from Seth Axelrad for The American Society of Law, Medicine and

Ethics (ASLME), available at http://www.aslme.org/dna_04/reports/axelrad3.pdf (describing different state policies

(continued...)

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Amendment challenge to a DNA databanking program, they are premised on a belief that people

retain a substantial privacy interest in the information encoded in their DNA even after they have

been convicted and their DNA lawfully included in a DNA database.

Academic Research and Non-forensic Information

Congress has generally sought to restrict the non-forensic use of DNA databases to those with the

potential to enhance the forensic utility of CODIS.127 The DNA Analysis Backlog Elimination Act

of 2000 criminalized both (1) the knowing disclosure of a sample or DNA analysis to someone

who is not authorized to receive it and (2) the unauthorized acquisition or use of such a sample or

analysis.128 However, federal law does not also entitle individuals aggrieved by the misuse of

their profiles to pursue a private cause of action against those responsible.129 In other words,

federal law prohibits most non-forensic uses of DNA databases but does not specifically authorize

private individuals to enforce this prohibition.

While database opponents would like to see federal law incorporate a private cause of action,

their primary concern is with state laws that permit a wider range of non-forensic uses of state

DNA databases. Some state legislatures, for example, have expressly authorized the use of the

state DNA database for medical and academic research.130 In the eyes of database opponents,

these states have established databanking programs that are more intrusive for the purposes of the

Fourth Amendment than those that follow the stricter federal standards.131

(...continued)

toward the non-forensic use of DNA databases).

127

See 42 U.S.C. §14132(b)(3) (authorizing the use of DNA profiles in CODIS for forensic identification purposes,

related legal proceedings, and, once personally identifiable information is removed, a “population statistics database”).

See also D.H. Kaye, Behavioral Genetics and Criminal DNA Databases, 69 LAW & CONTEMP. PROBS. 259, 276 (2006)

(explaining how population statistics databases, protocol development, and quality control research all fit within the

“identification paradigm”).

128

P.L. 106-546, §3(a)(5), codified at 42 U.S.C. §14135e(c).

129

Compare e.g., id. (making the knowing or intentional disclosure or use of a confidential DNA forensic record or

analysis a felony but not establishing a private cause of action for the aggrieved individual) with RI GEN. LAWS §121.5-15 (criminalizing violations of the confidentiality conditions on the use of DNA samples and authorizing a person

aggrieved by a violation to bring a civil action for damages, injunctive relief, and attorneys’ fees) and VT. STAT. ANN.

tit. 20, §1941 (criminalizing violations of the confidentiality conditions on the use of DNA samples and authorizing a

person aggrieved by a violation to pursue a private action for all “appropriate relief”).

130

See, e.g., MICH. COMP. LAWS §28.176(2)(d) (permitting DNA profiles contained in the database to be used, inter

alia, for an “academic,” “research,” or “statistical” analysis if “personal identifications” are removed); Ala. Code §3618-31 (authorizing the creation of a “DNA population statistical database” that may be used to, inter alia, “provide data

relative to ... disease or disability” and “assist in other humanitarian endeavors including, but not limited to, educational

research or medical research or development”). See also ARK. CODE ANN. §12-12-1018(d) (authorizing the creation of a

“population database” composed of DNA samples stored in the database with the “personal identification” removed).

131

See, e.g., Suter, supra note 62, at 335, 338 (stating that “vague legislative limits on the uses of the samples” risk, if

not empower, government searches that exceed their legal boundaries and raise “civil liberty concerns by increasing the

extent and breadth of government intrusions”). But see Kaye, supra note 127, at 260 (rejecting some of the theories,

both legal and scientific, that underpin this argument). Database opponents are also concerned that not all states have

expressly prohibited using DNA databases—and the information contained therein—for non-forensic research. See,

e.g., Suter, supra note 62, at 336 (stating that there are 40 jurisdictions that neither authorize nor prohibit non-forensic

uses and, in those states, there is “uncertainty as to the legal limits” on the uses of stored samples). For example, Idaho

lists permissible uses of collected DNA samples and profiles but does not expressly prohibit potential non-forensic

uses. IDAHO CODE ANN. §§19-5505, 19-5514.

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DNA Databanking: Selected Fourth Amendment Issues and Analysis

Although these claims have not been raised before a federal judge, they can draw support from

language in existing case law. Several courts have considered, as part of their Fourth Amendment

analysis, both the range of purposes for which a given DNA database can be used and the

penalties for any misuse.132 However, courts have also indicated that, until a case presents facts

establishing that a DNA database was used for a non-forensic purpose, a court cannot accurately

measure any resulting privacy intrusion or assess its Fourth Amendment reasonableness.133

Familial Searching and Information About Genetic Relationships

Although concerns about possible non-forensic use of DNA databases are reflected in state and

federal laws, the universe of possible forensic uses of DNA databases has generated greater public

concern in recent years. In particular, the technique known as “familial searching” has received

widespread media attention—both positive and negative—over the last decade.134

The FBI defines a familial search as a deliberate database search for potential relatives of the

suspect. Federal courts have not yet had an occasion to assess the constitutionality of familial

searching. The arrestee in United States v. Mitchell,135 discussed above,136 argued that one reason

that developing his DNA profile is more intrusive than obtaining his fingerprints is that, through

the former, the government can obtain information about his biological relationships and any

criminal activity by a member of his family.137 However, the court did not address this argument

in its analysis, finding, inter alia, that Mitchell had failed to provide any evidence to establish the

possibility that his DNA—which had not yet been collected—would be used in this way.138

Some privacy interests implicated by familial searching are different from those implicated by

more routine DNA database searches.139 In particular, commentators have asserted that familial

searching may violate two types of—and more than one person’s—privacy interests.140 The first

type is the privacy interests of the person whose DNA profile was located as a partial match.

Commentators assert that this person has a privacy interest in information about his genetic

relationships, information that may be revealed by a familial search of the DNA database.141 The

second set of privacy interests belongs to family members of the person whose profile was a

132

See, e.g., Banks v. United States, 490 F.3d 1178, 1192, 1193 (10th Cir. 2007) (weighing “the plaintiffs’ diminished

privacy rights, the minimal intrusion involved in obtaining a DNA sample, and the Act’s restrictive provisions” against

the governmental interests (emphasis added)); United States v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007) (finding that

the privacy invasion occasioned by the maintenance of DNA profiles is minimal because, inter alia, “the Act severely

limits the circumstances and purposes for which the DNA profiles can be released”).

133

See Amerson, 483 F.3d at 87; United States v. Kincade, 379 F.3d 813, 837-38 (9th Cir. 2004).

134

See, e.g., Maura Dolan, State to Double Crime Searches Using Family DNA, L.A. TIMES (May 9, 2011); Jessica

Cerretani, Whodunit? BOSTON GLOBE (October 31, 2010); Natasha Singer, In Fighting Crime, How Far Should a

Genetic Net Reach? N.Y. TIMES (July 24, 2010); Jeffrey Rosen, Genetic Surveillance for All, SLATE (March 17, 2009),

http://www.slate.com/id/2213958.

135

United States v. Mitchell, No. 09-4718, 2011 U.S. App. LEXIS 15272 (3d Cir. July 25, 2011).

136

Supra notes 95-107 and accompanying text.

137

Mitchell, 2011 U.S. App. LEXIS at * 62-64, n.19.

138

Id.

139

See, e.g., Suter, supra note 62, at 327-28.

140

See, e.g., id. at 342.

141

See, e.g., id. at 342, 343.

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DNA Databanking: Selected Fourth Amendment Issues and Analysis

partial match.142 Law enforcement may violate these privacy rights if, while following up on the

lead provided by the partial match, they collect DNA from the partial match’s family members

without a warrant.143 These family members may have privacy interests in their genetic identities

as well as in their genetic relationship—or lack thereof—with the person whose DNA was

profiled.

Because the constitutionality of familial searching has not yet reached the federal courts, the

existence of a reasonable privacy interest in genetic relationships remain a largely untested

assertion. Commentators defend its existence on the grounds that, unlike other types of

information, people do not knowingly expose their genetic relationships and, moreover, may not

necessarily be credited with knowledge—let alone amenability to public exposure—of their

genetic kin.144

Implications of New Research on Junk DNA

Despite the “rapid pace of technological development in the area of DNA analysis,”145 much of

DNA’s scientific value remains a mystery. As mentioned, FBI analysts rely on junk DNA

precisely because it is not believed to reveal sensitive medical or biological information. Partly

for that reason, proponents of expansive DNA collection argue that any privacy intrusion

resulting from DNA storage or analysis is minimal at most. For example, when he introduced the

amendment that authorizes collection and analysis of DNA from arrestees in the federal system,

Senator Kyl emphasized that storage of DNA samples would not intrude upon individuals’

privacy rights, stating that “the sample of DNA that is kept ... is what is called ‘junk DNA’—it is

impossible to determine anything medically sensitive from this DNA.”146 Likewise, courts have

assumed that DNA analysis and storage involves only a minimal privacy intrusion.

However, language in some opinions suggests that this assumption might change if scientists

discover new uses for junk DNA. The First, Second, and Third Circuits have all suggested that

“discovery of new uses for ‘junk DNA’ would require a reevaluation of the [Fourth Amendment]

reasonableness balance.”147 In addition, at least two judges on the Ninth Circuit have expressed

142

See Mitchell, 2011 U.S. App. LEXIS at * 63, n.19 (suggesting that the subject of a DNA profile lacks standing to

assert the Fourth Amendment rights of his biological relatives in keeping their genetic kinship with him private).

143

See, e.g., State v. Athan, 158 P.3d 27, 33-34 (Wash. 2007) (upholding the constitutionality of collecting DNA by

posing a fictitious law firm, inviting the suspect to join a class action lawsuit via mail, and collecting his saliva from the

sealed return envelope). See also Suter, supra note 62, at 358 (suggesting that a partial match alone cannot satisfy the

probable cause test because current forensic testing does not establish a sufficiently high probability of a biological

connection between the source of the partial match and the suspect).

144

See, e.g., Suter, supra note 62, at 364 (listing circumstances in which the source of the databanked profile with

similarities to the suspect’s may be unaware that he had a sibling who was given up for adoption or that one of his

children is the product of his partner’s adultery).

145

United States v. Weikert, 504 F.3d 1, 3 (1st Cir. 2007).

146

151 CONG. REC. S13757 (daily ed. December 16, 2005) (statement of Sen. Kyl).

147

United States v. Mitchell, No. 09-4718, 2011 U.S. App. LEXIS 15272, at *60 (3d Cir. July 25, 2011) (“Should

technological advancements change the value of ‘junk DNA,’ reconsideration of our Fourth Amendment analysis may

be appropriate.”); United States v. Stewart, 532 F.3d 32, 36 (1st Cir. 2008); United States v. Amerson, 483 F.3d 73, 85

n.13 (2d Cir. 2007) (“Should the uses to which ‘junk DNA’ can be put be shown in the future to be significantly greater

than the record before us today suggests, a reconsideration of the reasonableness balance would be necessary”). See

also Haskell v. Brown, 677 F. Supp. 2d 1187, 1190 n.1 (N.D. Cal. 2009) (noting that “so-called ‘junk’ DNA might

someday be found to contain genetic programming material,” but stating that the court’s opinion must be based on “the

(continued...)

Congressional Research Service

DNA Databanking: Selected Fourth Amendment Issues and Analysis

concern about the potential for profiles developed from junk DNA to yield more sensitive

information about their sources in the future.148

Scientific research on junk DNA is still emerging, and some research suggests that junk DNA

contains more genetic information than previously assumed. For example, in October 2008,

University of Iowa researchers released study findings showing that junk DNA has the potential

to “evolve into exons, which are the building blocks for protein-coding genes.”149 Other scientists

have similarly hypothesized that there are “gems among the junk” in DNA.150 Hence, a remaining

question is whether use of junk DNA will continue to offer superficial identifying information or

whether it will reveal more detailed medical or biological characteristics.

Conclusion

The nation, all 50 states, and many localities have adopted some type of DNA database program.

Over time, Congress and state legislatures have expanded the types of crimes and circumstances

that can result in DNA collection and databanking. Congress has demonstrated concern toward

some aspects of DNA databanking by requiring expungement of a DNA profile in certain

circumstances, prohibiting most non-forensic uses of DNA profiles and databases, and restricting

familial searching. However, in general, Congress has taken a supportive attitude toward DNA

databanking and incentivized the development, expansion, and integration of DNA databases.

As DNA database programs have widened in scope and grown in numbers, their consistency with

the Fourth Amendment’s prohibition on unreasonable searches and seizures has increasingly been

challenged. In the context of compulsory DNA collection, courts have widely upheld laws

mandating the collection of DNA from persons who were convicted and are subject to the penal

system’s custody or supervision. Far fewer cases have given the federal courts an opportunity to

decide whether DNA collection from arrestees is also constitutional. The two federal circuit

courts of appeals to hear the question upheld the mandatory DNA profiling of indicted arrestees,

but no federal court has assessed the constitutionality of profiling arrestees in the absence of a

judicial finding of probable cause.

Courts have generally upheld the indefinite use and storage of a lawfully databanked DNA profile

after its source’s conviction. However, not all courts agree that any post-conviction use of those

profiles is constitutionally acceptable. In particular, observers are now raising questions about the

(...continued)

facts as they are … today.”).

148

For example, in Pool, Judge Lucero wrote separately from the Ninth Circuit’s majority opinion to emphasize that, if,

in the future, a litigant proved that a CODIS DNA profile yields information unavailable from a fingerprint or

photograph, the “defendant’s interests could be vastly different” from Pool’s and the “totality-of-the-circumstances

test” would need to be conducted anew. Pool, 621 F.3d at 1230-31 (Lucero, concurring). In Kincade, Judge Reinhardt

wrote in his dissenting opinion that “The fact that scientists currently lack the capacity to comprehend the full

significance of the data stored within junk DNA samples is irrelevant” to the Fourth Amendment analysis because the

DNA profiles are retained forever and the advance of science will make them “only more revealing in time.” 345 F.3d

at 850 (emphasis added).

149

Lin L, Shen S, Tye A, Cai JJ, Jiang P, et al., Diverse Splicing Patterns of Exonized Alu Elements in Human Tissues,

4 PLOS GENETICS 1 (2008), http://www.plosgenetics.org/article/info%3Adoi%2F10.1371%2Fjournal.pgen.1000225.

150

W. Wayt Gibbs, The Unseen Genome: Gems Among the Junk, 29 SCI. AM. 49 (2003), http://www.imb.uq.edu.au/

download/large/TheUnseenGenome.pdf.

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DNA Databanking: Selected Fourth Amendment Issues and Analysis

Fourth Amendment consistency of using databases for non-forensic purposes and for familial

searching. Currently, these concerns are largely confined to the scholarly literature—they have

not come before a federal court—and primarily centered on state database programs. Unlike some

state DNA databases, the National DNA Index System (NDIS) and the Combined DNA Index

System (CODIS) can not be used for either non-forensic research or intentional familial

searching. However, the increase in states that authorize familial searching suggests that it may

not be long before the constitutionality of familial searching comes before a federal court.

Much of the Fourth Amendment analysis of these issues depends on the current state of scientific

knowledge on DNA and, more importantly, “junk” DNA—that is, the subset of DNA used to

create databanked profiles. Decisions upholding DNA databanking programs have often

described junk DNA as empty or meaningless genetic material because it is believed to reveal no

sensitive information about its source. However, recent scientific research is challenging the

accuracy of this description. While it may be too early for courts to give weight to this new

research as fact, some have suggested that the constitutionality of DNA database programs should

be reevaluated if “junk” DNA is ultimately found to reveal sensitive genetic information.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

Portions of this report were originally authored by (name redacted).

Congressional Research Service

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