Reclaiming "abandoned" DNA: the Fourth Amendment and genetic privacy.

I. INTRODUCTION 857 II. "ABANDONED" DNA AS AN INVESTIGATIVE TECHNIQUE 860 III. THE REGULATION OF ABANDONED DNA 862 A. From Trash to Genes 863 B. Finding Analogues 868 IV. THE IMPLICATIONS OF ABANDONED DNA 874 V. RESTRICTING COVERT INVOLUNTARY SAMPLING 880 VI. CONCLUSION 882 I. INTRODUCTION "If you've ever handled a penny, the government's got your DNA. Why do you think they keep them in circulation?" -The Simpsons, Who Shot Mr. Burns?1 "When you've licked a stamp on your tax return you've sent the government a DNA sample." -Victor Weedn, Head of Armed Forces DNA Identification Laboratory2 We leave traces-skin, saliva, hair, and blood-of our genetic identity nearly everywhere we go.3 Should the police be permitted, without restriction, to target us and to collect the DNA that we leave behind? In a growing number of instances, the police, unburdened by criminal procedure rules, seek this "abandoned DNA" from criminal suspects in hopes of resolving otherwise unsolvable cases.4 Successful DNA matches of identity are virtually conclusive of guilt.5 What are the consequences of allowing this investigative method to remain unregulated? In stark distinction to the growing body of commentary6 on the compulsory collection of DNA samples from prisoners and parolees for state and federal DNA databases,7 little attention has been paid to this backdoor method of DNA collection.8 This Essay discusses why the government's collection of "abandoned DNA" is a problem worthy of serious attention.9 But first, a definition is necessary: "Abandoned DNA" is any amount of human tissue capable of DNA analysis and separated from a targeted individual's person inadvertently or involuntarily, but not by police coercion.10 We can distinguish this method of DNA retrieval from samples obtained by force (by drawing blood)11 or by consent (for exoneration purposes). Abandoned DNA collection is also distinct from the acquisition of a suspect's DNA sample pursuant to a court-issued warrant.12 Deciding whether DNA might ever be "abandoned"-and with the DNA, an individual's legitimate expectations of privacy-is important because abandoned DNA provides the means to collect genetic information from anyone, at any time. Currently, the rules of criminal procedure appear to pose no restrictions on the police when collecting this evidence.13 Not only does "abandonment" affect police behavior, it raises basic questions about the changing nature of identity in the genetic age. How should we characterize the relationships between our physical bodies and our identities now that nearly any "body particle"14 can reveal entirely our genetic information? The final part of this Essay proposes first steps towards addressing this problem, but the Essay's primary task is to show the need to reframe the debate over covert involuntary DNA sampling (a more fitting label for what I will otherwise refer to as "abandoned DNA" throughout this Essay) and to make the case for "genetic exceptionalism." The discussion that follows has four parts. First, Part II describes why the collection of abandoned DNA is an appealing investigative technique for the police. What is more, as Part III.A demonstrates, the collection of abandoned DNA is virtually unregulated, largely because abandoned DNA has been likened to trash. …