By: Kathryn Zunno
Breakthroughs in technology have revolutionized the war on crime
by aiding law enforcement officials in virtually every type of
criminal investigation. Since 1986, the most increasingly utilized
crime solving weapon has been the analysis of deoxyribonucleic acid
(“DNA”) artifacts found at crime scenes in order to accurately
identify the perpetrator. It is the “uniqueness” of DNA
evidence that has enabled it to become an essential part of
criminal investigations and an extremely reliable source of
evidence – that is of course, if law enforcement officials discover
to whom this DNA evidence belongs. To expedite this challenge for
law enforcement officials, the federal government authorized the
Federal Bureau of Investigation (“FBI”) to establish a nation-wide,
“massive centrally-managed database,” called the Combined DNA Index
System (“CODIS”), where DNA samples collected from crime scenes,
crime victims, convicted offenders, and unidentified human remains
could be stored. The amount of DNA samples stored on CODIS
was greatly expanded when Congress passed the DNA Analysis
Backlog Elimination Act of 2000 (“DNA Act”), which gave law
enforcement the authority under federal law to require the
extraction of DNA from any individual in prison or on probation,
parole, or supervised release, so long as they have been convicted
of a “qualifying federal offense.” The FBI requires those in
federal custody who are subject to the DNA Act to submit to
compulsory blood sampling for DNA profiling, which “unquestionably
implicates [an individual’s] right to personal security,” and thus,
constitutes a search under the Fourth Amendment. Because this
search does not require any suspicion that an individual will
commit or has committed another offense, serious concerns are
raised over whether it violates the constitutional Fourth Amendment
right of those subject to the DNA Act “to be secure in their
persons…against unreasonable searches and seizures.” Recently, in
United States v. Kincade the United States Court of
Appeals for the Ninth Circuit addressed this issue and concluded
that the compulsory DNA profiling of qualified convicted offenders
comports with the requirements of the Fourth Amendment, and thus
upheld searches pursuant to the DNA Act as constitutional. It is
submitted that the Ninth Circuit erred in holding that searches
pursuant to the DNA Act comport with the Fourth Amendment.
This Comment argues that these searches, as currently prescribed by
the DNA Act, are unreasonable under the Fourth Amendment, and thus
are unconstitutional.