Who needs special needs? On the constitutionality of collecting DNA and other biometric data from arrestees

Journal of Law, Medicine and Ethics

Volumn 34, Issue 2, 2006, Pages 188-198

  Kaye, D H ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; CRIMINAL LAW; DERMATOGLYPHICS; DNA FINGERPRINTING; GENETIC PRIVACY; HUMAN; JURISPRUDENCE; LEGAL ASPECT; NUCLEIC ACID DATABASE; UNITED STATES;

CRIMINAL LAW; DATABASES, NUCLEIC ACID; DERMATOGLYPHICS; DNA FINGERPRINTING; GENETIC PRIVACY; HUMANS; SUPREME COURT DECISIONS; UNITED STATES;

EID: 33745303471     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2006.00026.x     Document Type: Conference Paper

References (104)

1. See D. H. Kaye The Constitutionality of DNA Sampling on Arrest Cornell Journal of Law and Public Policy 10 ( 2001 509 509, at 457-458.
2. The Louisiana law dates back to 1999, and the Virginia statute was enacted in 2002. For descriptions of these statutes and the legislative history, see T. Maclin, "Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment¿ What Should (And Will) the Supreme Court Do¿" Journal of Law Medicine & Ethics 33 ( 2005 124 124, at 104-105. Reprinted, Journal of Law Medicine & Ethics 34 (2006):165-187. The California law came by way of a popular referendum (Proposition 69) in November 2004 extending the DNA and Forensic Identification Database and Data Bank Act of 1998, Cal. Penal Code § 295, to include collection of DNA. See U. Torassa, San Francisco ACLU Sues to Scrap Prop. 69 and its DNA Databank, Invasion of Privacy Charged; Backers Say Law on Solid Ground, San Francisco Chronicle, December 8, 2004, at B3. The South Dakota law, which has been repealed, provided that "[t]he Attorney General shall procure and file for record genetic marker grouping analysis information from any person taken into custody for [certain criminal] violation[s]." S.D. Codified Laws Ann. § 23-5-14 (1998 & Supp. 2002).
3. Tex. Gov't Code § 411.1471(a)(2) ( 2004 authorizing collection of DNA at the same time as fingerprinting in kidnapping, sexual assault, and other cases and providing for destruction of samples and records on acquittal or dismissal of the charges. This provision became effective in 2002.
4. Then Attorney General Janet Reno referred the question to the National Commission on the Future of DNA Evidence, which recommended that arrestee sampling not be undertaken before the backlog of unanalyzed samples from convicted offenders is largely eliminated. This recommendation once appeared at http://www.ojp.usdoj.gov/nij/dna/arrestrc.html on January 16, 2000, as "Recommendation of the National Commission on the Future of DNA Evidence to the Attorney General Regarding Arrestee DNA Sample Collection." A transcript of the discussion and voting on the recommendation is still available at http://www.ojp.usdoj.gov/nij/topics/forensics/events/dnamtgtrans5/trans-i. html ( last visited February 13, 2006).
5. Title X, Pub. L. No. 109-162, 119 Stat. 2960.
6. Id. § 1004(a)(1)(A), amending the DNA Identification Act of 1994, 42 U.S.C. § 14132, by providing that "[t]he Attorney General may, as prescribed by the Attorney General in regulation, collect DNA samples from individuals who are arrested or from non-United States persons who are detained under the authority of the United States.".
7. Id., at § 1003, amending the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135(a)(1). The DNA Fingerprint Act of 2005 is part of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960. Added in committee by Senators Jon Kyl and John Cornyn ( see Cong. Rec. S13756 December 16, 2005, statement of Senator Kyl), the expansion of the federal database had the firm support of the administration. See R. Willing, "White House Seeks to Expand DNA Database," USA Today, April 15, 2003; Letter from Assistant Attorney General William E. Moschellato the Honorable Arlen Specter Concerning S. 1197, September 29, 2005, at A-33; Letter from Assistant Attorney General William E. Moschella to the Honorable Orin G. Hatch Concerning H.R. 3214, April 28, 2004, at 3-7; Letter from Assistant Attorney General William E. Moschella to the Honorable Orin G. Hatch Concerning S. 1700, April 28, 2004, at 5-6.
8. Maclin A, supra note 2, at 118.
9. Id.
10. Id., at 124, note 261.
11. 533 U.S. 27 ( 2001).
12. Maclin A, supra note 2, at 107.
13. Id., at 118.
14. Id.
15. For this very argument, see S. J. Carnahan The Supreme Court's Primary Purpose Test: A Roadblock to the National Law Enforcement DNA Database Nebraska Law Review 83 ( 2004 1 37.
16. United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003), vacated en banc, 379 F.3d 813 (9th Cir. 2004).
17. 533 U.S. 27 ( 2001).
18. Id., at 106-107.
19. A1999 report to the National Commission on the Future of DNA Evidence outlines and applies these three factors to conclude that compelling individuals to surrender DNA samples should be deemed a search within the meaning of the Fourth Amendment. D. H. Kaye, The Constitutionality of DNA Sampling on Arrest: An Interim Report to the National Commission on the Future of DNA Evidence, October. 1, 1999, available at (last visited February 13, 2006). A condensed version appears as D. H. Kaye, "DNA Sampling on Arrest and the Fourth Amendment," Government, Law, and Policy 2 (2000): 38-41, and an expanded and slightly updated version appears as Kaye, supra note 1. Lower courts passing on the constitutionality of convicted-offender DNA databases have not hesitated to treat compulsory DNA sampling as a search of the person. These cases are tracked in R. C. Miller, "Validity, Construction, and Operation of State DNA Database Statutes," American Law Reports 5th 76 (2000): 239-88.
20. 410 U.S. 1 (1973).
21. Id., at 14.
22. 89 U.S. 347 ( 1967).
23. Maclin, supra note 2, at 106.
24. 533 U.S. 27 ( 2001).
25. Maclin, supra note 2, at 106.
26. D. Prosnitz WMD Sensors - Search and Seizure Science 310 ( 2005 978 979.
27. Cf., e.g., D. A. Sklansky, Back to the Future: Kyllo, Katz, and Common Law,' Mississippi Law Journal 72 ( 2002 211 211, at 144, observing that [t]he ruling in Kyllo was relatively narrow: police officers need a warrant to aim a thermal imaging device at a house.'.
28. Professor Maclin in particular has explored with great skill and insight the unresolved tension between the broad interpretation of Kyllo and other cases. See T. Maclin, Katz, Kyllo and Technology: Virtual Fourth Amendment Protection in the Twenty-first Century,', Mississippi Law Journal 72 ( 2002 51 142.
29. For recent efforts of commentators to confine the Fourth Amendment's scope to real property concepts, see O. S. Kerr The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution Michigan Law Review 102 ( 2004 801 888 D. E. Steinberg, "The Original Understanding of Unreasonable Searches and Seizures," Florida Law Review 56 ( 2004 1051 1096.
30. 533 U.S. at 34-35.
31. See id., at 33, distinguishing "enhanced aerial photography of an industrial complex," which was held not be a search in Dow Chemical Co. v. United States, 476 U.S. 227 ( 1986 on the ground that we found 'it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened,' 476 U.S., at 237, n. 4 (emphasis in original).'.
32. Maclin, supra note 28; Sklansky, supra note 27.
33. In reality, compulsory DNA sampling is unlike infrared scanning in that it involves removing some cells. Scraping the inside of the cheek with a toothbrush-like implement or having the individual spit into a cup are practical techniques, but they are arguably intrusive enough to be searches under existing cases. This is not because of Kyllo; rather, it reflects the Court's "concerns about bodily integrity." Skinnerv. Railway Labor Executives 'Ass'n, 489 U.S. 602, 617 (1989) (dealing with the sampling of air from the alveoli for breath alcohol testing). See Kaye, supra note 1.
34. For a cogent exposition of the bases for heightened protection of the home, see Sklansky, supra note 27, at 191-192.
35. Sklansky, supra note 28, at 202. Indeed, Professor Sklansky urges a rethinking of the very doctrine that public usage of a technology precludes Fourth Amendment protection against governmental usage. Id., at 210, concluding that "[i]n the long term, sensible interpretation of the Fourth Amendment will require the Court to acknowledge the differences between government surveillance and private snooping, and to abandon the assumption that anything knowingly exposed 'to the public' is therefore fair game for the police.".
36. Cf. On Lee v. United States, 343 U.S. 747, 754 ( 1952 stating that "[t]he use of bifocals, field glasses or the telescope to magnify the object of a witness' vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions.".
37. 476 U.S. 227 ( 1986).
38. Id., at 229.
39. Id., at 232.
40. DNA Solutions, available at http://www.dnanow.com ( last visited February 13, 2006). The cost of aerial photography is hundreds of dollars per hour. See, e.g., Aerial Photography, at http://www.austinphoto.com/airinfo.html (last visited February 13, 2006), quoting $200 per hour for helicopter photography. Of course, this comparison might not be decisive. One can argue that notwithstanding its references to Dow, Kyllo itself points the way to a more restrictive reading of "not in general public use." See Kyllo, 533 U.S. at 47 n.5, Justice Stevens, dissenting, noting that the thermal imager at issue was just an 800-number away from being rented from 'half a dozen national companies' by anyone who wants one." Perhaps one can say, as Maclin did in considering whether Kyllo is limited to the home, [w]hile I agree that in future cases the Court is likely to read Kyllo's holding narrowly, there is nothing in Kyllo itself that demands this narrow interpretation." Maclin, supra note 28, at 116, note 291.
41. United States v. Nicolosi, 885 F. Supp. 50 (E.D.N.Y. 1995). Contra In re Nontestimonial Identification Order, 762 A.2d. 1239, 1247 (Vt. 2000).
42. Maclin states that all loci, coding and noncoding alike, can be used for parentage testing. Maclin, supra note 2, at 107 ( quoting D. H. Kaye Two Fallacies about DNA Databanks for Law Enforcement," Brooklyn Law Review 67 (2001): 179-206, at 187. Indeed, they can be used for siblingship testing as well. This would be significant if police had DNA samples from all the individuals whose familial relationships they wanted to test. Inasmuch as testing for siblingship or parentage is not possible with a sample from an arrestee alone, however, the extent to which this possibility implicates a meaningful privacy interest resulting from the practice of DNA sampling on arrest is unclear.
43. Id., at 106.
44. Id., at 107.
45. Id. The Court has adopted many devices to avoid denominating information-gathering practices as "searches" just because the information is sensitive. See S. F. Colb What is a Search¿ Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy Stanford Law Review 55 ( 2002 119 189 R. Simmons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-first Century Technologies, Hastings Law Journal 53 (2002): 1303-1358. These avoidance strategies are themselves questionable, however, and they should not apply to the forcible extraction of matter that the individual has not exposed to private parties.
46. See, e.g., Kyllo v. United States, 533 U.S. 27, 32 ( 2001 referring, somewhat disparagingly, to "our doctrine that warrantless searches are presumptively unconstitutional"; Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989), observing that "we have often emphasized, and reiterate today, that a search must be supported, as a general matter, by a warrant issued upon probable cause"; Mincey v. Arizona, 437 U.S. 385, 390 (1978)asserting that [t]he Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions,' quoting Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted); Terry v. Ohio, 392 U.S. 1, 20 (1968); Trupiano v. United States, 334 U.S. 699,705 (1948). But see T. Maclin, "The Central Meaning of the Fourth Amendment," William & Mary Law Review 35 (1993): 197-249, at 199-200, 206, asserting that despite these declarations, "law enforcement officials rarely must comply with the procedural safeguards of the amendment's Warrant Clause.... Instead, [i]f the Court can identify any plausible goal or reason that promotes law enforcement interests, the challenged police intrusion is considered reasonable and predicting that for the foreseeable future, the rational basis model likely will remain the constitutional test for judging government intrusions, whereas the importance and need to obtain warrants likely will continue to decline.".
47. Terry v. Ohio, 392 U.S. 1 ( 1968).
48. Illinois v. LaFayette, 462 U.S. 640 ( 1983).
49. United States v. Martinez-Fuerte, 428 U.S. 543 ( 1976 upholding warrantless vehicle stops and interrogation at a fixed checkpoint sixty-six miles from the border.
50. Griffin v. Wisconsin, 483 U.S. 868, 873 ( 1987 quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Justice Blackmun, concurring).
51. Maclin, supra note 2, provides a lucid exposition of these cases.
52. See United States v. Kincade, 379 F.3d 813, 822-823 (9th Cir. 2004) (en banc), distinguishing among searches at "exempted areas,'administrative' searches, "and" searches [for] 'special needs'"; Maclin, supra note 2, at 107-08, differentiating "as a doctrinal matter "between" the special needs cases and the administrative search cases. "But see D. A. Sklansky," Police and Democracy," Michigan Law Review 103 (2005): 1699-1830, at 1735, pointing out that "the administrative search doctrine was broadened into the 'special needs' doctrine, applying relaxed standards to searches by public school teachers, government office managers, and so on.".
53. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-666 ( 1989).
54. Kaye, supra note 1, at 492, elaborating on this theory. Whether the Court has been sufficiently rigorous in its balancing is another matter. See Maclin, supra note 46.
55. See, e.g., Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir. 1999), holding a convicted-sex-offender database constitutional under "a reasoned interpretation of the 'special needs' doctrine" where the special need was said to be the prevention of recidivism; State v. Olivas, 856 P.2d 1076, 1088 (Washington 1993), upholding a statute convicted-offender statute under the special-needs theory rather than relying on the theory that "the privacy rights of convicted persons" are "diminished.".
56. 531 U.S. 32 ( 2000).
57. 532 U.S. 67 ( 2001).
58. 531 U.S. at 34.
59. 532 U.S. at 83.
60. Kaye, supra note 1, at 494-495, observing that it seems odd to maintain that the balance of interests permits dispensing with warrants or individualized suspicion when non-law-enforcement interests alone are pursued, but not when both law enforcement and non-law enforcement interests reinforce each other.
61. D. H. Kaye Two Fallacies about DNA Databanks for Law Enforcement Brooklyn Law Review 67 ( 2001 179 206, describing a possible "frontal assault" on the primary-purpose test.
62. S. J. Carnahan, supra note 15; Kaye, supra note 61; M. Roth-stein and S. Carnahan, "Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Data Banks, Brooklyn Law Review 67: (2001): 127-170; J. Kravis, A Better Interpretation of 'Special Needs' Doctrine after Edmond and Ferguson," Yale Law Journal 112 (2003): 2591-2598.
63. Maclin, supra note 2, at 115-116.
64. Id., at 105.
65. See Senator Jon Kyl Press Office, Press Release, Judiciary Committee Adds Kyl DNA Bill to Violence Against Women Act (September 8, 2005), available at http://kyl.senate.gov/record.cfm?id=245432 (last visited February 13, 2006). In relevant part, the press release reads: "In early 1993, [Andre] Crawford was arrested for felony theft. Under the DNA Fingerprint Act, DNA could have been taken from him at that time and kept in NDIS [the national DNA database]. Because it was not, when Crawford murdered a 37-year-old woman in September 1993, although he left DNA at the scene, he could not be identified as the perpetrator. Over the next six years, Crawford went on to commit one rape and to murder ten more women between the ages of 24 and 44. If Crawford's DNA sample had been taken and kept in NDIS after his March 1993 arrest, he could have been identified and arrested after the September 1993 murder, and ten more murders and one rape would have been prevented. The Chicago study examines 7 other serial rapists, and concludes that 30 rapes and 22 murderers committed by these perpetrators could have been prevented by an all-arrestee database." The Chicago cases are described more fully in the Congressional Record, July 29, 2005, at S9529-S9531 (statement of Senator Kyl).
66. Maclin, supra note 2, at 108 (emphasis added).
67. Id., at 124 note 261.
68. See, e.g., United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc); State v. Raines, 857 A.2d 19 (Md. 2004). Another unpalatable strategy is to rely on the theory a conviction ipsofacto works a forfeiture of Fourth Amendment rights. See D. H. Kaye and M. E. Smith DNA Identification Databases: Legality, Legitimacy, and the Case for Population-wide Coverage Wisconsin Law Review ( 2003 413 459, at 417-419.
69. See, e.g., United States v. Sczubelek, 402 F.3d 175, 184-187 (3d Cir. 2005), applying these factors under a "totality of circumstances" reasonableness standard to uphold compelling a federal probationer to submit to DNA sampling; Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir 2005), same reasoning with regard to a Georgia convicted-offender statute.
70. For the views of the circuit courts, see, e.g., Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965), "Taking of fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights"; Smith v. United States, 324 F.2d 879, 882 (D.C. Cir. 1963), "[I]t is elementary that a person in lawful custody may be required to submit to photographing. and fingerprinting... as part of routine identification processes.".
71. 394 U.S. 721 ( 1969).
72. Id., at 722.
73. Id., at 723.
74. Id.
75. Id., at 727.
76. Id., adding that "petitioner was unnecessarily required to undergo two fingerprinting sessions; and petitioner was not merely fingerprinted during the [first] detention but also subjected to interrogation.".
77. Id. Fingerprinting following an arrest for which there is probable cause to detain the suspect should be even less objectionable.
78. Biometrics are measurable physiological or behavioral characteristics that can be used to verify the identity of an individual. (In an older and more general usage, the term "biometrics" refers to measuring and statistically analyzing any biological data.) Physiological characteristics that have been used or studied in biometric identification or authentication systems include features of the iris, fingerprints, hand, face, voice, retina, odor, earlobe, sweat pores, lips, and DNA. Behavioral characteristics are manifested in such activities as writing, keystroking, speaking, and walking. Biometric identification or authentication systems are essentially pattern recognition systems.
79. For an analysis of the very limited value of judicial warrants for routine sampling on arrest, see Kaye, supra note 1.
80. The balancing, in the context of DNA identification profiling, is discussed further in Kaye, supra note 1.
81. Davis itself concerns the reasonableness of the detention of a suspect - the seizure of a person. The dicta seem to allow this seizure for the "nontestimonial" purpose of fingerprinting or even of obtaining a blood sample if a judicial officer determines that the state has reasonable suspicion to believe that the sample would link the suspect to the crime. The DNA-on-arrest laws discussed here are quite different. They contemplate collecting and storing DNA from a person even when there is no reasonable basis to suspect that the DNA will link the individual to the offense for which the arrest was made. Nevertheless, the logic of Davis is that collecting the biometric data (in that case, the fingerprints) is so limited an invasion of bodily integrity and privacy and that it is sufficiently valuable in generating evidence that it can justify the seizure of the person. These same considerations probably would lead the Court to conclude that, as to persons who are legitimately placed in custody, routine fingerprinting for the purpose of building a database or checking against latent fingerprints from unsolved cases is a reasonable search even without a warrant and individualized suspicion. If so, the Court would have to declare one of two things: (1) that fingerprinting is not even a search, or (2) that it is a reasonable search because it falls within a previously unarticulated exception to the warrant requirement.
82. Maclin, supra note 2, at 124, note 261, reprinted this volume at 187, note 261.
83. For an expression of this concern, see, e.g., C. Slobogin Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity Mississippi Law Journal 72 ( 2002 213 315, advocating Fourth Amendment protection for the operation of public surveillance cameras.
84. On the issue of invasiveness, see, e.g., Simmons, supra note 45.
85. A fortiori, it would not include the hypothetical "brain wave recorder" posited in S. F. Colb, 'A World Without Privacy: Why Property does not Define the Limits of the Right Against Unreasonable Searches and Seizures,' Michigan Law Review 102 ( 2004 889-903. These techniques do not fulfill the first or second requirements of the categorical exception.
86. For commentary arguing that such systems should be classified as searches and thereby subject to Fourth Amendment scrutiny, see, e.g., M. J. Blitz Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity Texas Law Review 82 ( 2004 1349 1422 J. J. Brogan "Facing the Music: the Dubious Constitutionality of Facial Recognition Technology," Hastings Communications & Entertainment Law Journal 25 (2002): 65-96; R. H. Thornburg, "Face Recognition Technology: The Potential Orwellian Implications and Constitutionality of Current Uses Under the Fourth Amendment," John Marshall Journal of Computer and Information Law 20 (2002): 321-346; cf. Slobogin, supra note 83.
87. D. H. Kaye and M. E. Smith, supra note 68.
88. Simmons A, supra note 45.
89. It is not strictly necessary to invoke the biometric exception for fingerprinting in the course of a custodial arrest. Historically, the practice arose from the need to establish the true identity of the arrestee for administrative purposes. See Kaye, supra note 1. Originally, computer-searchable databases of fingerprints were not available. The system having been instituted for purposes other than generating evidence for use in a criminal case, standard doctrine would allow the secondary use. If, however, the proposal to realign or jettison the subsequent-use doctrine advanced in H. J. Krent, "Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment," Texas Law Review 74 (1995): 49-100, were adopted, the exception might be necessary to sustain the practice of collecting fingerprints on arrest for administrative purposes and then turning around and using them to solve cases in which fingerprints provide trace evidence. Certainly, deciding on whether there should be a biometric exception that would justify the secondary use is more satisfying than the two-step subsequent-use analysis. The latter simply avoids a frank balancing of the relevant interests in favor of the government's power to search.
90. Neither do arrestee databases lend themselves to routine parentage testing. See supra note 42.
91. D. H. Kaye Behavioral Genetics Research and Criminal DNA Databanks Law and Contemporary Problems 69 ( 2006 in press).
92. "Front-loaded" and "back-loaded" systems to protect genetic information are discussed in Kaye, supra note 1.
93. They are somewhat less discriminating than fingerprints, since they do not distinguish between monozygotic twins.
94. Davis, 394 U.S. at 727.
95. See, e.g., Boling v. Romer, 101 F.3d 1336, 1340 ( 10th Cir. 1996 noting "the legitimate government interest in the investigation and prosecution of unsolved and future criminal acts by the use of DNA in a manner not significantly different from the use of fingerprints.".
96. See supra notes 63-65.
97. See supra notes 63-65.
98. As of November 30, 2005, the state of Virginia had assembled DNA profiles from 236, 511 convicted felons. These produced some 2,617 hits, a little more than one percent. The arrestee database does not grow in the same manner, for profiles are removed when prosecutions do notproceedto convictions or when defendants plead guilty to misdemeanors. These events occur in about half of all felony arrests, and the arrestee database has been hovering at around 4,000. The cumulative number of hits in this database is 233, or about six percent. E-mail from Dr. Paul Ferrarato D. H. Kaye, December 5,2005. Of course, the two percentages are not directly comparable; removing profiles from the arrestee database decreases the denominator of the proportion of hits, and increases the resulting percentage. Moreover, for many reasons, hits in both groups do not always produce convictions. See R. Willing, "DNA Matches Win Few Convictions in Va.," USA Today, November 7, 2005, reporting that "Virginia's crime lab has found there were convictions in less than one-quarter of more than 3,000 cases in which analysts matched crime-scene DNA to a genetic profile in the state's databases." It would be interesting to know how many of the arrestee hits came from records that have been expunged. Expungement reduces the effectiveness of these databases, at least to some extent, and it is not obvious that the Fourth Amendment necessitates expungement. Cf. Hodge v. Jones, 31 F.3d 157 (4th Cir. 1994), holding that, given the state's interest in maintaining a computerized database of investigations of child abuse, the constitution does not require the files of parents who hadbeen investigated and cleared of child abuse charges to be removed from the database. Also missing is information on how many of the people who are arrested already were represented in a convicted-offender database. Presumably, they were not included in the arrestee database, but their DNA might have produced hits had it been collected and analyzed at the time of their first arrest.
99. A pilot project in New York produced eighty-six DNA profiles from 201 burglaries (forty-three percent). National Institute of Justice, "DNA in 'Minor' Crimes Yields Major Benefits in Public Safety," November 2004, available at http://www.ncjrs.org/pdffiles1/nij/207203.pdf ( last visited February 13, 2006).
100. Carnahan, supra note 15, at 37; cf. E. Curtis An Unwarranted Intrusion: the Constitutional Infirmities of Washington's DNA Collection Law Washington Law Review 80 ( 2004 447 476, arguing that the Washington state convicted-offender DNA law violates the state constitution because it compels searches that do not fall into one of the previously recognized exceptions.
101. Id., at 35.
102. See, e.g., Mincey v. Arizona, 437 U.S. 385, 390 ( 1978).
103. Kaye, supra note 1, at 499.
104. J. A. Alfano, Look What Katz Leaves Out: Why DNA Collection Challenges the Scope of the Fourth Amendment,' Hofstra Law Review 33 ( 2005 1017 1047.