Drawing Lines: Unrelated Probable Cause As a Prerequisite to Early DNA Collection

BY David H. Kaye

Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view 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 Article shows that this position is largely unfounded. Either warrantless, suspicionless DNA collection before conviction is unconstitutional across the board or it is permissible immediately after the arrest. The Constitution does not make a probable-cause determination for an unrelated offense the dispositive moment.

This piece is written in response to earlier commentary in the Addendum, Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N.C. L. Rev. Addendum 157 (2012).

DOWNLOAD PDF | 91 N.C. L. Rev.Addendum 1 (2012)