A question perhaps increasingly presented to the state and federal courts of the nation, to paraphrase California First District Court of Appeals Judge Anthony Kline, is the extent to which technology can be permitted to diminish the privacy guaranteed by the Fourth Amendment.
That court last week decided that that state's law mandating DNA samples be taken from felony arrestees is unconstitutional.
Law.com last Thursday, noted "the DNA question is a hot one — in September, the Ninth Circuit U.S. Court of Appeals is set to rehear a case involving DNA collection as a condition of pretrial release, while last month reporting the Third Circuit Court of Appeals’ "sharply divided opinion" that “ DNA profiling samples are 'fingerprints for the 21st century,' and ruling that the government has the right to routinely collect DNA samples from anyone who is arrested for inclusion in a national database."
The National Conference of State Legislatures last year reported that all 50 states were now require convicted sex offenders to provide DNA samples, with many increasingly expanding those policies to include all felons and, in some cases, misdemeanor offenses. 47 states require that all convicted felons provide a DNA sample to the state’s database, whether sex-related or not.
By 2009, 21 states had passed laws authorizing DNA samples at the time of arrest in some cases. Ohio joined those ranks last year with the passage of its Senate Bill 77. That law went into effect July 1st.
Compulsory DNA Collection as a Fourth Amendment issue was addressed by the Congressional Research Service in February 2010. ( Report available here )
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