DNA Databanking: Selected Fourth Amendment Issues and Analysis

This report looks at how the practice of DNA database programs, which have been looked at favorably by Congress, are in possible violation of.
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Previous opinions had held that blood and urine sampling—indeed, even scraping a little debris from beneath a fingernail of a suspect—are searches.

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The real controversy was over the second two points. These are code words in Fourth Amendment jurisprudence. The Court has used this exception many times. Drug testing in schools and in the workplace, roadblocks to find information about a hit-and-run driver and to get drunken drivers off the roads, and periodic searches of jail cells, for example, do not require probable cause and a warrant. In ordinary cases, in which the only point of the search is to generate such evidence or to seize contraband or stolen items, a warrant is required.

It permits jailers, judges and prosecutors to know whether an arrestee has a criminal record—but not just because the record might be evidence of guilt in the current case. Above and beyond that possibility, the existing record is relevant to administrative and judicial decisions about the need for and nature of pretrial confinement.

Having a permanent biometric record serves still other interests as well 6. Yet, both opinions stated that the case did not fall within the special-needs exception. One case involved road blocks and dogs trained to detect drugs; the other was a hospital program, developed in conjunction with law enforcement, to test the urine of pregnant women for drug metabolites and to refer the women to the police if they refused drug counseling. The Court has never decided whether the same result should apply when the program truly serves multiple purposes 7.

In any event, the King Court merely gestured to the special-needs exception. It did not pursue this line of analysis. Second, the Court might have created a new categorical exception for certain forms of biometric data collection 7 8. Although Maryland mentioned this possibility in its petition for review, neither side referred to it again, and the Court did not consider it.

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Third, the Court could have adopted a new regime in which every case involves a direct inquiry into the reasonableness of the search under all the circumstances. Although some justices have spoken of Fourth Amendment reasonableness in this manner, King does not leave every search open to such ad hoc balancing. Rather, the Court chose a fourth option. It tried to confine the per-se-rule-with-defined-exceptions to some types of searches, leaving the kind of search before it to be judged under the balancing standard.

This description is somewhat cryptic. Whether, after King , observers can recognize the set of cases for which balancing is appropriate is a nice question, but the Court was certain that the King case belongs to it. Having settled on the open-ended balancing standard for ascertaining the reasonableness of the Maryland law, the majority applied it. The processing also can be investigative: In this respect the use of DNA for identification is no different than matching an arrestee's face to a wanted poster of a previously unidentified suspect or matching tattoos to known gang symbols to reveal a criminal affiliation or matching the arrestee's fingerprints to those recovered from a crime scene.

Having articulated a subset of all of the state interests in DNA-BC, the Court had to weigh them against the individual interests that underlie the Fourth Amendment. In that regard at least, fingerprints are superior. Those lawmakers were out to enhance the efficacy of the state database in catching criminals by using it to associate the unidentified crime-scene samples with a larger collection of known samples from arrestees plus the previous base of convicted offenders.

And that the constitution forbids—no matter how minor the intrusion on the person and on privacy. There are, however, a number of difficulties with this reading of the constitution and the case law. For one, the Court has upheld suspicionless searches whose primary purpose was to develop investigatory leads or find evidence of guilt.

The sole purpose of the roadblock in a case known as Illinois v. Lidster 9 was to discover the identity of a hit-and-run driver. So too, the Court in Samson v. In fact, the dissent objected to the balancing precisely because it thought that such balancing would justify far more than the collection of DNA from arrestees a matter that I address below.

The state did not collect the sample, analyze it and upload the profile as part of the booking process. Days, weeks and months went by for this process to be completed. Other statements about the law are dicta. They do not bind other courts. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

However, one can sensibly suggest that, on average, people arrested for minor traffic offenses are less likely to be hiding their true identities and to have incriminating DNA samples at crime scenes than are people arrested for far more serious matters. If such a case ever arose, however, one could argue that King simply does not apply. It does not follow that just because it is permissible to acquire DNA from properly arrested individuals, the government also is free to retain wrongfully acquired samples and profiles.

But what about a system that acquired DNA from everyone without trampling on their Fourth Amendment right to freedom from arbitrary arrests? What if neonatal screening tests for genetic conditions now performed as a public health measure and thus permissible under a special-needs analysis were expanded to include STR profiling, with the identification profiles being uploaded to law enforcement databases?


  • What the Supreme Court Hasn't Told You About DNA Databases;
  • DNA Databanking: Selected Fourth Amendment Issues and Analysis - Digital Library.
  • What the Supreme Court Hasn't Told You About DNA Databases.

Police never would touch these samples or the babies , but a population-wide database could emerge Although it may be a nonstarter politically, the principled case for a population-wide database is not frivolous 13 All the justices seem to agree that the physical intrusion in buccal swabbing is minor. But suppose that the dissent were correct in proposing that even the most trivial physical intrusion justifies applying its categorical rule. A state could collect DNA even less intrusively.

For example, the government might only ask for a hand to be placed on a sticky pad. Thus, the information in the database is only useful for human identity testing. Moreover, CODIS loci certainly can be used to make inferences about a few family relationships and to give rough indications of biogeographic ancestry.

Consequently, when a familial search is performed, the resulting suspect pool can contain from a few up to hundreds or more suspects, depending on the search parameters used, making the initial pool of CODIS partial matches and their biological relatives too large for a manageable investigation [ 15 ]. Additional analysis is necessary to verify relatedness between the evidence profile and the partially matched offender [ 3 , 15 ]. Taking measures to improve the reliability of familial searching will maximize the efficiency of investigations and limit unwarranted scrutiny on innocent individuals.

Several states have also adopted approaches to narrow a suspect pool to a single or a few candidate persons of interest. Because moderate- and low-stringency CODIS searches were originally intended to match DNA profiles from evidence samples directly to CODIS profiles, the search results do not statistically rank partial matches or take into consideration allele frequency. Retesting of evidence and candidate profiles for Y-chromosome STR YSTR markers can greatly reduce the number of coincidental matches in the suspect pool.

California, Colorado and Texas policies require YSTR analysis of male candidate results to be conducted before identifying information on the partial match profile is released to investigators [ 9 , 11 , 12 ]. Analysis of mitochondrial DNA mtDNA serves a similar function to YSTR analysis in reducing coincidental partial matches and narrowing the pool of true relatives by implicating maternal lineage [ 19 , 20 ]. The identity-by-state IBS statistical approach infers genetic similarity based on the number of matching markers between two profiles, regardless of how individual markers are inherited.

When using the IBS approach, analysts rank matches based on the highest number of matched markers to the lowest number, with a full match being 26 shared alleles [ 18 , 20 ]. For familial searching, this approach can prioritize an entire data set of potential relatives without complicated statistical analysis. However, the IBS approach does not take into account allele frequency, population size and other factors that affect the likelihood that two samples are genetically related [ 18 ].

For instance, parent-child relationships are easily detected when two profiles share at least one allele at each marker; however, the IBS between a parent and child could be as low as 13 of 26 shared alleles and thus could be falsely excluded from a candidate partial match list [ 20 ]. In California, software for familial searching generates partial matches using the IBS strategy, limiting the pool to candidate profiles sharing 15 or more of 26 possible alleles with the evidence profile, which must be a single-source profile [ 9 ].

In familial searching, a likelihood ratio or kinship index compares the probability of two profiles' being from related sources to the probability of the two profiles' being unrelated. Calculating a likelihood ratio takes into account all 13 markers typed in a CODIS profile, the allele frequencies of the 26 detected alleles and potential mutation events at each marker.

The likelihood ratio can vary based on the frequency of each marker across the population, the number of loci compared in the profiles and the prior odds of the alleged relationship [ 19 ]. The likelihood ratio calculation allows investigators to rank the individuals within the pool of candidates according to the probability that the evidence profile is related to the CODIS profile [ 3 , 18 , 20 ]. To carry out Colorado's familial search policy, the Denver District Attorney's office and the Denver Police Crime Lab designed software that combines IBS and likelihood ratios for use in familial searches [ 11 ].

Virginia's authorities adopted the software developed in Colorado to conduct familial searches in Virginia [ 10 ]. California uses software to generate likelihood ratios for all profiles from the IBS screen sharing 15 or more alleles. The software returns profiles above an established likelihood ratio threshold and can be used to rank candidate profiles by statistical relatedness [ 9 ].

To improve the reliability of hits from familial searches, investigators can type markers in addition to the standard 13 STRs [ 18 ]. Additional markers could improve the precision of inferences of familial relatedness and might also unveil rare alleles. All STR alleles vary, with different frequencies occurring among different populations. Close relatives are more likely than two random individuals to share rare alleles. If an evidence profile happens to exhibit a rare allele at one of the thirteen STRs, investigators may choose to first focus the investigation on partial match candidates who also carry the rare allele.

Traditional police investigation of public records may support or refute suspected biological relationships in a candidate partial match list. Such public records review is costly but can reduce concerns about unwarranted investigation of families unrelated to the perpetrator of the crime [ 11 ]. In Colorado, crime investigators are expected to attempt to verify familial relations through background checks of the partial match individual and family members using public resources, such as court and jail records, criminal history checks, investigative reports and vital records [ 11 ].

Familial searching approaches can either positively or negatively affect individuals, families, certain racial groups and society in general, inevitably raising ethical and privacy questions. Proponents of familial searching assert that the potential to improve public safety and ensure justice outweigh any costs to individual and family privacy, especially if mechanisms are in place to minimize harm [ 5 , 22 , 23 ]. Between and , the United Kingdom successfully used familial searching to obtain convictions in 19 cases [ 24 ].

To address ethical challenges, the United Kingdom established the National DNA Database Ethics Group, which monitors all ethical and human rights concerns with respect to searches [ 25 ]. This ethics group covers a wide range of topics, including familial searching as well as general privacy and ethical issues associated with the use and storage of DNA, and makes policy recommendations, such as whether to implement routine Y-chromosome testing [ 26 ].

Similarly, California formed a Familial Search Committee FSC comprised of law enforcement officials, attorneys and scientists within the California Department of Justice, which reviews familial search requests submitted by law enforcement M Chamberlain, Deputy Attorney General, California Department of Justice, personal communication. The members review the progress of cases and provide legal and ethical checkpoints at major steps in the investigation. The California FSC requires law enforcement officials to sign a Memorandum of Understanding stating that they will follow through with their request and with the conditions of approval of familial searching [ 9 ].

Opponents of familial searching warn that, as a by-product of familial searches in an investigation, family members may learn information about relatives that was previously unknown to them [ 27 ]. For example, family members may not be aware that their relative was arrested or convicted of a crime. Familial search investigations may also reveal a genetic relationship previously unknown to the individuals [ 27 , 28 ]. The revelation of such facts could have a profound emotional impact on entire families, potentially leading to domestic violence or estrangement [ 5 ].

To mitigate the potential for harm precipitated by such incidental findings, familial searching policies may impose verification of familial relationships through the public records as a prerequisite for questioning the suspects uncovered in the familial search, such as the requirement contained in Colorado's familial search policy [ 11 ].

Advocates have noted that familial searching minimally affects an individual's sense of privacy and liberty because individuals investigated as a result of a familial search remain unaware that they are under police scrutiny until law enforcement officials identify further cause for interrogation [ 22 , 23 ]. Because familial searching is intended to develop a suspect pool when conventional investigation of available evidence has not created leads, it by design opens the investigation of potentially innocent individuals based on their genetic material [ 29 ].

Some argue that familial searching carries a risk for increased genetic surveillance in that law enforcement officials may investigate individuals primarily on the basis of their genetic information [ 3 , 30 , 31 ]. Concerns about genetic surveillance are exacerbated by the additional risk of abuse of power by law enforcement officers and agencies [ 27 ]. Although most policies permit familial searching only after all other investigative options have been exhausted, law enforcement officials may use familial searching as a routine part of their investigations.

Routine familial searching may aggravate public perceptions that law enforcement exploits CODIS to troll for suspects and invade individuals' privacy [ 32 ]. To date no such reports of abuse have surfaced. Conversely, some people believe it is their duty as citizens to cooperate and assist with law enforcement, and proposed tools to solve crime typically garner public support.

Introduction

To limit the abuse of power, California, Texas and Virginia authorize familial searches only after investigators have exhausted all other leads [ 9 , 10 , 12 ]. The Colorado policy allows the Colorado Bureau of Investigation to conduct routine familial searches and permits crime investigators to follow up on potential matches obtained from a search [ 11 ]. Legal scholars have taken various stances on the constitutionality of familial searches. Their opinions are based on two core questions about when a search occurs and whether a search is reasonable.

The Fourth Amendment provides protections against unreasonable searches and seizures [ 33 ]. US courts continue to debate the Fourth Amendment implications of using a DNA sample for purposes beyond the initial creation of a profile [ 32 , 34 , 35 ]. The collection of physical biological material for forensic analysis has been termed a search under the Fourth Amendment [ 36 ].

In familial searching, scholars have posited that the timing of the search affects who may be considered the subject of a Fourth Amendment search. Consideration of who is subject to a search may shape how courts and legal experts assess the privacy considerations implicated by the search and whether law enforcement officials may conduct a reasonable search based on the progress of an investigation.

In some jurisdictions, a search warrant issued on the basis of a showing of probable cause is required to conduct a reasonable search. In others, the justification for a search can be established with reasonable suspicion or suspicionless cause L Dame, personal communication, class lecture entitled "Familial searches of DNA databases and the Fourth Amendment," Spring , Duke Genome Sciences and Policy Capstone course, Duke University. In some instances, suspicionless searches are allowed on a case-by-case basis, with courts weighing individual privacy rights against the government's interest in protecting the public from crime.

To ensure that a search is reasonable, courts may apply the balancing test to weigh individuals' rights protecting them from unreasonable search and seizure against the government's duty to preserve public safety. Some scholars posit that, because biological materials are not collected directly from relatives under investigation during a familial search, the legal search occurs when the low-stringency DNA database search is run, such that investigators effectively include relatives of convicted offenders and arrestees in a database search.

From this perspective, in a familial search, CODIS offenders' biological relatives may be considered the individuals being searched and thus are protected under the Fourth Amendment. Others argue that the legal search occurs during the creation of the profile: From this perspective, as long as law enforcement officials properly obtain a genetic sample during a search of an offender, subsequent testing and analysis of the DNA may not be protected by the Fourth Amendment [ 37 ]. Because investigators typically use familial searching when existing leads do not point to a specific suspect, a familial search may require justification for suspicionless cause.

Some scholars propose that only crimes that pose a substantial threat to public safety warrant the use of familial searching [ 3 , 5 ]. California, Texas and Virginia choose to restrict familial searching only for violent or sexual crimes because the heinous nature of these crimes compels a strong response from law enforcement officials [ 9 , 10 , 12 ].

On the other hand, because many criminals commit minor crimes before they engage in major violent crimes, the use of familial searching to investigate lesser crimes could be justified to prevent future felonies.

Policy implications for familial searching

Colorado does not limit familial searching to violent crimes, but requires that crime investigators submit written requests to conduct familial searches when the crime under investigation poses a substantial public safety concern and conventional investigative approaches have been exhausted [ 11 ]. Colorado also authorizes nontestimonial identification orders, allowing law enforcement agencies to obtain DNA samples based on suspicion lower than probable cause. Courts may issue nontestimonial identification orders for the collection of various specimens, including fingerprints, blood, urine and hair [ 38 ].

Colorado policymakers may extend nontestimonial identification orders to allow law enforcement to conduct familial searches in cases without individualized suspicion. While convicted felons may be profiled and searched nationwide, state policies differ with regard to whether arrestees and juveniles may be profiled, whether they continue to have a reduced expectation of privacy after their release from incarceration, or whether they can be profiled after their records are expunged.

Some argue that arrested individuals and juveniles may reasonably expect to have decreased privacy during the time of arrest and therefore may be included in DNA databases.