The Constitutionality of DNA Sampling of Arrestees
|
| Title | The Constitutionality of DNA Sampling of Arrestees |
| Authors | |
| Abstract | This article addresses whether the DNA Act (which requires DNA samples from arrestees) passes constitutional muster. I argue that the act is constitutional and that if society believes the collection of DNA from arrestees violates an individual’s privacy, it should seek legislative resolution and not seek the protection of the Fourth Amendment of the Constitution. Throughout my analysis, I demonstrate why DNA collection is constitutional and how it is necessary. Part I of this article examines the history of DNA sampling, case law establishing an arrestee’s expectation of privacy, and the applicable Fourth Amendment tests. Part II examines the arguments for and against DNA sampling by considering case law at the state and federal level, and explores the significance of junk DNA and the treatment of abandoned DNA. Part III is the personal analysis section, which argues that the totality of circumstances test is the proper test. I apply the test to determine that there is minimal intrusion of an arrestee’s expectation of privacy through DNA sampling, a legitimate governmental interest, and that warrants are unnecessary. Further, the section demonstrates why DNA sampling is a natural progression from fingerprint collection, and the section analyzes abandoned DNA and DNA sampling. Part IV concludes the article by stating that the Fourth Amendment is not violated and that society must turn to Congress to seek greater protection. |
| Publisher | University Library System, University of Pittsburgh |
| Date | 2012-12-21 |
| Source | Pittsburgh Journal of Technology Law and Policy Vol 13: VOLUME XIII, Issue 1-Fall 2012 |
| Rights | 1. Author´s Grant of Rights in Work to Journal. a. The Author hereby grants to the Journal the right of first publication of the Work. b. The Author hereby grants to the Journal and its agents the royalty-free, nonexclusive perpetual right and license to publish, archive, and make accessible the Work in whole or in part in all forms of media now or hereafter known under a Creative Commons 3.0 License (Attribution-Noncommercial-No Derivative Works), or its equivalent, which, for the avoidance of doubt, allows others to copy, distribute, and transmit the Work under the following conditions: i. Attribution-other users must attribute the Work in the manner specified by the Author as indicated on the Journal´s Website; ii. Noncommercial-other users (including the Journal) may not use this Work for commercial purposes; iii. No Derivative Works-other users (including the Journal) may not alter, transform, or build upon this Work; with the understanding that any of the above conditions can be waived by or with the permission of the Author and that where the Work or any of its elements is in the public domain or subject to re-use as a matter of fair use or fair dealing or otherwise under applicable law, that status is in no way affected by this grant of rights. c. The Author authorizes the Journal to edit the Work prior to publication, but the Work shall not be published by the Journal unless it is acceptable in its final form to both the Author and the Journal. 2. Author´s Retention of Rights in the Work. a. The Author retains the copyright in the Work. b. The Author is permitted to enter into separate, additional contractual arrangements for the nonexclusive distribution of the Journal´s published version of the Work (e.g., post the Work to an institutional repository or publish it in a book), so long the subsequent publication contains an acknowledgement and credit of the first publication in this Journal. c. The Author is permitted and encouraged to post online a manuscript of the Work in institutional repositories or on a Website prior to publication of the Work, including but not limited to repositories maintained and/or hosted by SSRN and Bepress. The Author agrees on a best efforts basis to include with any such posting, upon publication of the Work, (i) a reference to the DOI (Digital Object Identifier, explained at http://www.doi.org/) assigned to the Work; (ii) a link to the online abstract for the final published Work in the Journal; and (iii) the citation to the published version of the Work. 3. Author´s Representations and Warranties a. The Author represents and warrants that to the best of the Author´s knowledge: i. the Work is the Author´s original work, and the Author has the power to convey the rights granted in this Agreement; ii. the Author has not transferred, and will not transfer, exclusive rights in the Work to any third party; iii. the Work has not previously been published, in whole or in part, except as mutually agreed to in writing by both the Author and the Journal. iv. the Work contains no misrepresentation or infringement of the Work or property of other authors or third parties; and v. the Work contains no matter that is defamatory, violates an person´s right of privacy, right of publicity, civil right, interest in confidential or proprietary information, or that is otherwise unlawful. b. Upon the Journal´s request, the Author agrees to furnish promptly to Journal, at the Author´s own expense, written evidence of the permissions, licenses, and consents for use of third-party material included within the Work, except as determined by the Journal to be covered by the principles of fair use. c. The Author agrees to indemnify and hold the Journal harmless from the Author´s breach of any of the representations and warranties contained in this Paragraph 3, as well as any claim or proceeding relating to or deriving from the Journal´s use and publication of any content contained in the Work, including third-party content 4. Final Agreement This Agreement constitutes the entire agreement between the Author and the Journal with respect to the publication and copyright of the Work. Any modifications of or additions to the terms of this Agreement shall be mutually agreed to in writing by both Author and Journal. |