You’re Under Arrest—Say Ah:Suggestions for Legislatures DraftingStatutes Allowing DNA Extractionfrom Arrestees

Table of ContentsI. Introduction 1444II. Similarities and Differences Among Federal and State DNA Extraction Statutes 1447A. The Federal Statute 1447B. State Statutes 14481. From Whom Can DNA Be Extracted? 14492. What "Encouragement" Is Provided to Ensure Collection? 14503. When Can the Sample Be Taken? 14524. What Are the Procedures for Expungement?......... 14535. Other Notable Features of State Systems 1457III. Constitutional Challenges to Federal and StateStatutes 1459A. The Analogy Between DNA Extraction from People Arrested for Qualifying Offenses and People Convicted of Qualifying Offenses 1461B. The Analogy Between DNA and Photos and Fingerprints......... 1465C. The Effectiveness of Expungement Procedures........ 1468D. The Use of Reasonable Force to Extract Samples 1470IV. The Reasons for DNA Extraction from Arrestees 1471V. Evaluation of DNA Extraction Statute 1476 Ingredients 1476VI. Conclusion.........1480I IntroductionThe procedures followed by law enforcement after the arrest of a suspect are all too familiar. The suspect is read his rights, brought to the police station, and "booked," a process involving verification of the suspect's identity by taking a photograph (the "mug shot") and impressions of the suspect's fingerprints.1 In recent years a new element of the process has emerged-a lab technician will appear, don rubber gloves, and take either a blood sample or a swab of the inside of the suspect's cheek, known as a buccal swab.2 From this swab, a DNA sample will be extracted, the total sample will be narrowed down to so-called "junk" strands,3 and the suspect's DNA profile will be uploaded to the state and federal DNA databases.4The federal Combined DNA Index System (CODIS) and the various state DNA databases initially only contained profiles for people convicted of certain qualifying offenses.5 Every court to consider the post-conviction DNA extraction statutes has found them to be constitutional.6 Recently, the federal statute and many state statutes have been amended to allow law enforcement to take DNA samples from people arrested for qualifying offenses.7Challenges to the federal statute have made their way to courts of appeals, and those that have considered the statute have deemed it constitutional.8 State statutes have by and large gone unchallenged, but those state courts considering the issue have split.9 Courts have analogized extraction of DNA after arrest to extraction of DNA after conviction.10Courts to consider DNA extraction statutes consider extraction as two separate searches.11 The first search, the extraction itself, whether done by blood draw or buccal swab, has been deemed minimally intrusive.12 The second search, creation of the DNA profile in the database, is more controversial, but courts upholding extraction statutes have emphasized that arrestees have a reduced reasonable expectation of privacy, database profiles contain only information that can be used to determine the identity the arrestee, and the penalties for improper disclosure of information in the database are stiff.13 These courts support their argument by comparing DNA extraction to taking fingerprints and photographs-traditional booking procedures-finding it is merely a more efficient, foolproof way to serve the same interests in identifying the arrestee and establishing a baseline for the rest of the process.14 The DNA databases have been found to be powerful law enforcement tools, and courts have concluded the interests of the government outweigh the interests of the individual.15Recently, however, a powerful opposing viewpoint has emerged that would find these statutes unconstitutional.16 This line of reasoning holds there are significant differences between extraction of DNA post-arrest and post-conviction, so the constitutionality of post-conviction extraction should not be a factor in evaluating post-arrest statutes. …