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On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye
On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye
David Kaye
For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …
Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
David Kaye
Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection …
A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David H. Kaye
A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David H. Kaye
David Kaye
Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for …
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye
David Kaye
As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …