Is Obtaining an Arrestee's DNA a Valid Special Needs Search under the Fourth Amendment? What Should (and Will) the Supreme Court Do?

Hibbert M. , “DNA Databanks: Law Enforcement's Greatest Surveillance Tool?” Wake Forest Law Review 34 (1999): 767–825, at 768.

See Andrews v. State , 533 So. 2d 841 (Fla. Dist. Ct. App. 1988) (affirming a conviction in the first United States case admitting DNA identification evidence).

Hibbert M. , supra note 1, at 769.

Id. at 771 n.12 (citing state statutes authorizing DNA testing of certain categories of offenders).

See Watson J. D. , Recombinant DNA (2d ed. 1992): at 14.

Yee Y. H. , Note, “Criminal DNA Data Banks: Revolution for Law Enforcement or Threat to Individual Privacy?” American Journal of Criminal Law 22 (1995): 461–490, at 464.

See Coleman H. and Swenson E. Holloway D. and Aulinskas T. eds., DNA in the Courtroom: A Trial Watcher's Guide (Seattle, WA: GeneLex Corp. 1994): at 3 and 33 (noting that approximately 99.9% of human DNA is identical and these genetic polymorphisms are unique to individuals with the exception of identical twins).

Deck J. S. , Note, “Prelude to a Miss: A Cautionary Note Against Expanding DNA Databanks in The Face of Scientific Uncertainty,” Vermont Law Review 20 (1996): 1057–1090, at 1062.

See Coleman and Swenson , supra note 7, at 34.

Hansen M. , “The Great Detective,” American Bar Association Journal (April, 2001): 36–42, 44, 77.

Saltus R. , “DNA in Fingerprints Used as Identifier,” Boston Globe, June 19, 1997, at A5.

Plymouth County District Attorney's Office, DNA Testing Procedures, at <http://www.mass.gov/da/plymouth/forensics/testing-des.htm> (last visited January 14, 2005).

FBI CODIS homepage, Mission Statement & Background, at <http://www.fbi.gov/hq/lab/codis/program.htm> (last visited January 14, 2005).

42 U.S.C. § 14132 (2000); The FBI's DNA & Databasing Initiatives, brochure by the U.S. Department of Justice and FBI 5, available at <http://www.fbi.gov/hq/lab/codis/fbidna.pdf> (October 2000) (last visited January 14, 2005) (noting that the Act “formalized the FBI's authority to establish a national DNA index for law enforcement purposes”).

42 U.S.C. § 14132(a). At the federal level, DNA sampling is only required from individuals convicted of certain federal crimes and is not applicable to persons arrested for federal offenses. This article does not discuss the constitutionality of the taking and analysis of DNA from convicted felons or from probationers or parolees under the Fourth Amendment. As this article goes to press, there have been no successful Fourth Amendment challenges at the appellate court level to DNA fingerprinting of this category of individuals. See, e.g., Maryland v. Raines, 857 A.2d 19 (Md. 2004) (upholding state DNA collection statute for certain convicted offenders); id. at 26 (citing cases from federal and state appellate courts upholding DNA collection laws); United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc) (upholding compulsory DNA testing of certain conditionally-released federal offenders in the absence of individualized suspicion that the offenders have committed additional offenses); Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996) (holding that DNA sampling of an inmate is reasonable due to the diminished privacy rights of prisoners under the Fourth Amendment); see also Rise v. Oregon, 59 F.3d 1556, 1559–1560 (9th Cir. 1995) (holding that a state may “interfere with” Fourth Amendment rights to obtain DNA without a warrant or probable cause). See also Barfield D. F. , Comment: “DNA Fingerprinting – Justifying the Special Need for the Fourth Amendment's Intrusion into the Zone of Privacy,” Richmond Journal of Law and Technology 6 (2000): at 27; Lawson M. L. , Note, “Personal Does Not Always Equal ‘Private’: The Constitutionality of Requiring DNA Samples From Convicted Felons and Arrestees,” William and Mary Bill of Rights Journal 9 (2001): 645–671. The Bush Administration has proposed to amend 42 U.S.C. § 14132(a) to cover arrestees. DNA Database Enhancement Act, H.R. 3036, 108th Cong. (2004).

Juengst E. T. , “I-DNA-FICATION, “Personal Privacy and Social Justice,” Chicago-Kent Law Review 75 (1999): 61–82.

The FBI's DNA & Databasing Initiatives, brochure by the U.S. Department of Justice and FBI 5, available at <http://www.fbi.gov/hq/lab/codis/fbidna.pdf> (Oct. 2000) (last visited January 14, 2005).

Human Genome Project Information, DNA Forensics, at <http://www.ornl.gov/sci/techresources/Human_Genome/elsi/forensics.shtml#5> (last modified September 16, 2004) (last visited January 14, 2005).

FBI CODIS homepage, NDIS Statistics, at <http://www.fbi.gov/hq/lab/codis/clickmap.htm> (last visited January 14, 2005).

Promega, The FBI Laboratory's Combined DNA Index System Program, at <http://www.promega.com/geneticidproc/ussymp6proc/niezgod.htm> (last visited January 14, 2005).

FBI CODIS homepage, NDIS – Participating States, at <http://www.fbi.gov/hq/lab/codis/partstates.htm> (last visited January 14, 2005).

Stevens A. P. , Note: “Arresting Crime: Expanding the Scope of DNA Databases in America,” Texas Law Review 79 (2001): 921–960, at 929.

42 U.S.C. § 14135 (2000).

42 U.S.C. § 14135(a)(1).

National Institute of Justice homepage, NIJ Technology Program Publication Collection: Forensic DNA, at <http://www.ojp.usdoj.gov/nij/sciencetech/dna_pub.htm> (last visited Jan.14, 2005).

National Forensic DNA Study Report, available at <http://www.ojp.usdoj.gov/nij/pdf/dna_studyreport_final.pdf> (Dec.12, 2003) (last visited January 14, 2005).

Advancing Justice through DNA Technology, Executive Summary, available at <http://www.whitehouse.gov/infocus/justice/dna_initiative_policy_book.pdf> (March 2003) (last visited January 14, 2005).

Va. Code Ann. § 19.2–310.2:1 (1996).

Va. Code Ann. § 18.2–30 et seq. (1996).

Va. Code Ann. § 18.2–38 et seq. (1996).

Va. Code Ann. § 18.2–47 et seq. (1996).

Va. Code Ann. § 18.2–47 et seq. (1996).

Va. Code Ann. § 18.2–58 (1996).

Va. Code Ann. § 18.2–58.1 (1996).

Va. Code Ann. § 18.2–61 et seq. (1996).

Va. Code Ann. § 8.2–77 (1996).

Commonwealth of Virginia, Department of Criminal Justice Services, at <http://www.dfs.state.va.us/> (last visited January 14, 2005) (stating “The Division of Forensic Science (DFS) is a nationally accredited forensic laboratory system serving all state and local law enforcement agencies, medical examiners, and Commonwealth's Attorneys in Virginia. Our examiners provide technical assistance and training, evaluate and analyze evidence, interpret results, and provide expert testimony related to the full spectrum of physical evidence recovered from crime scenes.”)

Va. Code Ann. § 19.2–310.4 (1996).

Va. Code Ann. § 19.2–310.5 (1996).

Va. Code Ann. § 19.2–310.6 (1996).

Hibbert , supra note 1, at 774.

Timberg C. , “DNA Test for VA Arrestees Proposed; Attorney General Nominees Seek to Expand Database,” The Washington Post, August 18, 2001, at A01.

Sorokin E. , “Attorney General Hopefuls Favor More DNA Collection,” The Washington Times, August 7, 2001, at C1.

Clines F. X. , “Virginia May Collect DNA in Every Arrest for a Felony,” New York Times, February 17, 2002, at 22.

Glod M. , “Va. to Begin Taking DNA after Arrests for Felonies; Prosecutors, Rights Activists Split on Expansion,” The Washington Post, January 1, 2003, at B01.

Telephone conversation between research assistant Meredith Scull and Ann Korman of Virginia Delegate Ryan McDougle's office on August 27, 2004.

La. R.S. § 15:609(A)(1) (2004).

La. R.S. § 14:35 (2004).

La. R.S. § 14:37.3 (2004).

La. R.S. § 14:38 (2004).

La. R.S. § 14:38.2 (2004).

La. R.S. § 14:40.2 (2004).

La. R.S. § 14:80.1 (2004).

La. R.S. § 14:82 (2004).

La. R.S. § 14:83 (2004).

La. R.S. § 14:83.3 (2004).

La. R.S. § 14:85 (2004).

La. R.S. § 14:284 (2004).

La. R.S. § 15:609(A)(2) (2004).

La. R.S. § 15:607 (2004).

La. R.S. § 15:613 (2004).

La. R.S. § 15:617(B) (2004).

La. Act 737 (1997).

La. House Concurrent Resolution No. 40 (1999); see O'Brien K. , “State Still Without DNA Data Bank Despite 1997 Law,” Times-Picayune, Oct. 30, 2000, at 1.

O'Brien , supra note 68.

Copeland L. and Parker L. , “Amid Sprawling Investigation, One Tip Led to La. Serial Killings Suspect,” USA Today, available at <http://www.usatoday.com/news/nation/2003-05-28-serial-questions_x.htm> (May 28, 2003) (last visited January 14, 2005).

Stanley S. A. Rioux P. Maggi L. , and Finch S. , “Captured: Serial Killer Suspect Arrested in Atlanta,” Times-Picayune, May 28, 2003, at 1.

Stanley S. A. , “Retired Grocer Credited with Helping Bag Lee; Hunch Put Cops on Trail, Some Say,” Times-Picayune, June 8, 2003, at 1; Stanley S. A. , “Cops Dig Up Slab on Land Linked to Lee; Suspect Poured it After Woman Disappeared,” Times-Picayune, May 30, 2003, at 1.

Hasten M. , “Costly DNA Plan Called Vital,” Daily Advertiser, June 2, 2003, at 1A.

Barrouquere B. , “La. DNA Law Tests Limit of Policing Powers,” The Advocate, June 24, 2003.

La. R.S. 15:602 (2004).

“DNA Bill Passage is Essential Despite the State's Shaky Budget,” Daily Advertiser, June 21, 2003, at 8A (noting that Louisiana had a backlog of 3,000 DNA samples awaiting analysis).

Anderson E. , “DNA Testing Bill OK'd By House Committee; Foes Say Program Could Be Abused, Violate Rights,” Times-Picayune, May 8, 2003, at 6.

Audio Recording: May 2003 Regular Session Video Archive Web Cast, La. Sen. Dardenne Jay , at <http://house.louisiana.gov/rmarchive/2003/May2003.htm> (May 7, 2003) (last visited January 14,2005).

U.S. Const. amend. IV.

In addition to the articles already cited, the following articles have informed my views on the constitutionality of mandatory DNA sampling of convicted offenders and arrestees. Carnahan S. J. , “The Supreme Court's Primary Purpose Test: A Roadblock to the National Law Enforcement DNA Database,” Nebraska Law Review 83 (2004): 1–38; Dodson A. J. , “DNA ‘Line-Ups’ Based on a Reasonable Suspicion Standard,” University of Colorado Law Review 71 (2000): 221–254; Drobner F. W. , “DNA Dragnets: Constitutional Aspects of Mass DNA Identification Testing,” Capital University Law Review 28 (2000): 479–511; Imwinkelried E. J. & Kaye D. H. , “DNA Typing: Emerging or Neglected Issues,” Washington Law Review 76 (2001): 413–474; Kaye D. H. , “The Constitutionality of DNA Sampling on Arrest,” Cornell Journal of Law and Public Policy 10 (2001): 455–509 [hereinafter Kaye , “DNA Sampling on Arrest”]; Kaye D. H. , “Two Fallacies About DNA Data Banks for Law Enforcement,” Brooklyn Law Review 67 (2001): 179–206 [hereinafter Kaye , “Two Fallacies”]; Kaye D.H. and Smith M. E. , “DNA Identification Databases: Legality, Legitimacy, and the Case for Population-wide Coverage” Wisconcin Law Review (2003): 413–459. Rothstein M. A. & Carnahan S. , “Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Data Banks,” Brooklyn Law Review 67 (2001): 127–178; Scherer R. C. , “Mandatory Genetic Dogtags and the Fourth Amendment: The Need for a New Post-Skinner Test,” Georgetown Law Journal 85 (1997): 2007–2038; Will J. F. , “Comment: DNA as Property: Implications on the Constitutionality of DNA Dragnets,” University of Pittsburg Law Review 65 (2003):129–143. Additional articles on offender DNA databases are cited in Kaye , “DNA Sampling on Arrest,” supra at 459, n.18. For an excellent discussion of the government's authority to use and analyze information obtained from lawful searches and seizures, see Krent H. J. , “Of Diaries and Data Banks Use Restrictions Under the Fourth Amendment,” Texas Law Review 74 (1995): 49–100.

The California DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Proposition 69), approved by voters on November 2, 2004, is even more expansive than the Louisiana and Virginia laws. California Official Voter Information Guide, Text of Proposed Law, Proposition 69, at <http://www.voterguide.ss.ca.gov/propositions/prop69text.pdf> [hereinafter Proposition 69 Text] (last visited January 14, 2005); Winton R. and Blankstein A. , “Law Officials Ready to Start Expanding DNA Database,” Los Angeles Times, Nov. 4, 2004, at 8. Proposition 69 mandates collection of DNA samples from adults and juveniles convicted of felonies, sex offenses, and arson offenses, and adults arrested for or charged with felony murder, voluntary manslaughter, or sex offenses. By 2009, the law will require a DNA sample from every adult arrested for or charged with a felony. California Official Voter Information Guide, Summary and Legislative Analysis, Proposition 69, at <http://www.ss.ca.gov/elections/bp_nov04/prop_69_legislative_analysis.pdf> (last visited February 3, 2005). The DNA profiles will be made available to local, state, federal, and international authorities. Proposition 69 Text. On December 7, 2004 the American Civil Liberties Union of Southern California [ACLU] and other groups filed a class action lawsuit claiming that Proposition 69 violates the Fourth and Fourteenth Amendments. Complaint, Weber et al. v. Lockyer, et al. (N.D. Cal.), at <http://www.aclu-sc.org/attachments/p/Prop69_Complaint.pdf.> (last visited January 14, 2005) Some of the individuals named as plaintiffs included the following: Michael Weber, a San Francisco resident, who was arrested during an anti-war protest but whose charges were later dismissed. Rodney Ware, a Sacramento County man who, because he was the victim of identity theft, was arrested on a felony warrant. Because the actual target of the warrant had used Ware's name under false pretenses, the warrant was ultimately found not to pertain to Ware, and criminal charges were not pursued against Ware. James Blair, a resident of Alameda County and a user of medical marijuana. Blair was arrested for offenses related to his possession and use of marijuana, but the charges were later dismissed after Blair's physician appeared in court and testified that Blair's possession and use of marijuana were pursuant to the physician's medical advice. And Rachel Delucci-Youngberg, a Shasta County resident who was charged and prosecuted for murder after she shot her abusive husband in self-defense. Delucci-Youngberg was subsequently acquitted of the murder charge. Id. at 6–8.

See, e.g., California v. Greenwood , 486 U.S. 35, 40 (1988).

See, Kaye , “DNA Sampling on Arrest,” supra note 83, at 473 (listing these criteria).

United States v. Dionisio , 410 U.S. 1 (1973). Dionisio held that an order to produce a voice exemplar for a grand jury's consideration did not violate the defendant's Fourth Amendment right against unreasonable searches and seizures. “The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public…no person can have a reasonable expectation that others will not know the sound of his voice.” Id. at 14.

See Kincade, 379 F.3d at 873 (Kozinski, J., dissenting) (noting that individuals “can't go anywhere or do much of anything without leaving a bread-crumb trail of identifying DNA matter.”) It should be noted that Judge Kozinski does not accept the claim that the forcible extraction of DNA does not constitute a search under the Fourth Amendment.

Smith v. United States , 324 F.2d 879, 882 (D.C. Cir. 1963) (“It is elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.”)

United States v. Richardson , 388 F.2d 842 (6th Cir. 1968).

See infra notes 100–108 and accompanying text. Cf. Kaye , “DNA Sampling on Arrest,” supra note 83, at 476 (noting that “Dionisio and cases extending it involve no intrusion into or touching of private areas of the body and no discovery of information about the individual beyond the identifying characteristics”) (footnote omitted).

533 U.S. 27 (2001). For a comprehensive and cogent discussion of Kyllo and its impact, see “Symposium, The Effect of Technology on Fourth Amendment Analysis and Individual Rights,” Mississippi Law Journal 72 (2002): 1–1143.

533 U.S. at 34.

Professor Kaye contends that “the rationale of Kyllo is quite limited” and does not dictate the conclusion that DNA sampling constitutes a search. Kaye , “DNA Sampling on Arrest,” supra note 83, at 480, n.104.

384 U.S. 757 (1966).

Id. at 767.

489 U.S. 602 (1989).

Id. at 606.

Id. at 616–17. Skinner also concluded that the blood tests mandated by the regulations constituted searches. Furthermore, Skinner plainly stated that the “ensuing chemical analysis of [a blood] sample to obtain physiological data is a further invasion of the tested employee's privacy interests.” Id. at 616. See also Krent , supra note 83, at 69 (explaining why “subsequent governmental use of information may intrude upon privacy far more than the initial seizure itself, just as the chemical analysis of blood and urine samples may constitute a greater intrusion into privacy than the collection of the sample”) (footnote omitted); Scherer , supra note 83, at 2026 (“[I]t is not the taking of [a DNA sample] that is the most objectionable search. Rather, it is the analysis that poses a grave threat to the privacy interests of millions of Americans.”) Despite Skinner's plain language, Professor Kaye insists that Skinner did not decide whether “laboratory analysis of a legitimately acquired sample is a ‘second search’ and lower courts have concluded that it is not.” Kaye , “Two Fallacies,” supra note 83, at 202, n.96 (citations omitted).

Skinner, 489 U.S. at 617. See also Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 678–79 (1989) (holding that “[w]here the Government requires its employees to produce urine samples to be analyzed for evidence of illegal drug use, the collection and subsequent chemical analysis of such samples are searches that must meet the reasonableness requirement of the Fourth Amendment.”) See also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (affirming that “state-compelled collection and testing of urine, such as that required by [school officials] constitutes a ‘search’ subject to the demands of the Fourth Amendment.”) See also Bd. of Educ. of Indep. Sch. Dist. of Pottawatomie County v. Earls, 536 U.S. 822, 828 (2002) (holding that “[s]earches by public school officials, such as the collection of urine samples for drug testing, implicate Fourth Amendment interests.”)

Skinner, 489 U.S. at 617.

See Kaye , “DNA Sampling on Arrest,” supra note 83, at 482 (“ Arguably , Skinner is distinguishable in that urinalysis involves both the possible revelation of private information and interference with what might be called, for want of a better phrase, ‘excretory privacy.’”); cf. Imwinkelried and Kaye , supra note 83, at 439 (collecting DNA is distinguishable from urinalysis because the latter “involves a much more extensive intrusion into privacy: The possible revelation of private information, compelled excretion of bodily fluid, and monitoring the normally private act of excretion”) (footnote omitted).

See Kincade, 379 F.3d at 821, n.15 (relying on Schmerber and Skinner in concluding that the “compulsory extraction of blood for DNA profiling unquestionably implicates the right to personal security embodied in the Fourth Amendment, and thus constitutes a ‘search’ within the meaning of the Constitution.”) See also Carnahan , supra note 83, at 7–8 (explaining that the involuntary taking of blood and the use of buccal swabs to collect skin cells from the lining of the cheek are searches).

See e.g., Scherer , supra note 83, at 2021. The author notes that the information obtained from DNA is much more extensive than the information obtained from the drug and alcohol tests in Skinner and its progeny. First, unlike drug or alcohol tests which measure the concentration of a substance at a particular point in time, “DNA analysis maps immutable, lifelong characteristics of an individual. Indeed, immutability is what makes DNA such an ideal identifier.” Id. Moreover, while the tests done in Skinner “garnered information solely about the government employee, the information revealed in a DNA analysis is not unique only to that donor. Information from a donor's genome also reveals the private concerns of the donor's parents, children, and siblings.” Id. (footnote omitted).

Kaye , “Two Fallacies,” supra note 83, at 187.

Id. at 192.

Kaye , “DNA Sampling on Arrest,” supra note 83, at 505.

Cf. id. at 482 (“As currently practiced,…DNA sampling should be considered a search within the meaning of the Fourth Amendment.”)

See e.g., Skinner , 489 U.S. at 619 (“Except in certain well-defined circumstances, a search or seizure is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.”)

Griffin v. Wisconsin , 483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) [Blackmun, J., concurring in judgment]).

See e.g., Stuntz W. J. , “Implicit Bargains, Government Power, and the Fourth Amendment,” Stanford Law Review 44 (1992): 553–591, at 554; cf. Dery G. M. III , “Are Politicians More Deserving of Privacy than Schoolchildren? How Chandler v. Miller Exposed the Absurdities of Fourth Amendment ‘Special Needs’ Balancing,” Arizona Law Review 40 (1998): 73–103, at 74 (commenting that under the special needs cases, the “Court assigns values to the parties' various needs without any standard weights or measurements. The resulting subjectivity has created absurd inconsistencies [between the cases].”) See also, Reamey Gerald S. , “When ‘Special Needs’ Meet Probable Cause: Denying the Devil Benefit of Law,” Hastings Constitutional Law Quarterly 19 (1992): 295–341, at 299–300 (asserting that the Court's special needs cases “are individually flawed for failing to adhere to their conceptual antecedents, and are collectively flawed by requiring that the Supreme Court interpret the [fourth] amendment in an ad-hoc and unprincipled fashion”). Cf. Kaye , “DNA Sampling on Arrest,” supra note 83, at 489 (describing the special needs cases as a “relatively recent and somewhat amorphous category of searches”).

See, e.g., Ferguson v. City of Charleston , 532 U.S. 67, 86–87 ( Kennedy J. , concurring in judgment) (noting that the “majority views its distinction between the ultimate goal and immediate purpose of the [governmental search] as critical to its analysis. The distinction the Court makes, however, lacks foundation in our special needs cases.”)

See, e.g., Saltzburg S. A. and Capra D. J. , (7th ed.) American Criminal Procedure: Cases and Commentary (2004): at 412. Professors Saltzburg and Capra explain that in Chandler v. Miller, 520 U.S. 305 (1997), the Court second-guessed the effectiveness of a drug-testing policy aimed at candidates for political office, but note that “such second-guessing was missing in the Court's previous cases, and in the subsequent case of [Board of Ed. of Independent School Dist. No. 92 of Pottawatomie County. v. Earls, 536 U.S. 822 (2002)]. Saltzburg and Capra also observe that it is “no surprise that drug-testing cases are all over the map after Chandler.” Id. (listing lower court rulings with differing results on the constitutionality of drug-testing of certain employees who perform work for governmental entities).

Id. at 431 (after discussing the many special needs cases, asking “[w]here is the line, then, between crime enforcement and special needs.”) Professor Kaye also notes that lower court judges “have disagreed as to the applicability of the ‘special needs’ exception to convicted-offender DNA databanking.” Kaye , “DNA Sampling on Arrest,” supra note 83, at 491 (listing cases) (footnote omitted); see also Kincade , 379 F.3d at 832 (plurality opinion) (upholding suspicionless searches of certain conditionally-released federal offenders mandated by the DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 114 Stat. 2726 (2000), under a “totality of the circumstances” test, “[w]hile not precluding the possibility that the [searches] could satisfy a special needs analysis”); id. at 840 ( Gould J. , concurring) (upholding DNA testing of federal offenders under special needs exception); id. at 856 ( Reinhardt J. , dissenting) (arguing that “primary purpose in conducting searches pursuant to the DNA Act is to generate evidence capable of assisting ordinary law enforcement investigations,” which is “the paradigmatic search condemned by the special needs doctrine”).

482 U.S. 691 (1987).

531 U.S. 32 (2000).

See, e.g., Carnahan , supra note 83, at 15 (describing Edmond as a special needs case which “casts doubt on much, if not all, of the reasoning of the prior [lower court] DNA cases, placing some squarely in conflict”); Kaye , “DNA Sampling on Arrest,” supra note 83, at 490, n.152 & 154. See also, Kincade, 379 F. 3d at 825 (plurality opinion) (describing Edmond as a special needs case); id. at 853, n.9 ( Reinhardt J. dissenting) (describing Edmond and Burger as special needs cases).

469 U.S. 325 (1985).

Id. at 341.

Id. at 351 ( Blackmun J. , concurring in judgment).

See id. at 351 (noting that the Court has “used such a balancing test, rather than strictly applying the Fourth Amendment's Warrant and Probable-Cause Clause, only when we were confronted with ‘a special law enforcement need for greater flexibility.’”) (citation omitted).

Id. at 352.

Id. at 353 (“The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable-cause requirement, and in applying a standard determined by balancing the relevant interests.”)

Schulhofer S. J. , “On the Fourth Amendment Rights of the Law-Abiding Public,” Supreme Court Review (1989): 87–163, at 100.

T.L.O., 469 U.S. at 351 ( Blackmun J. , concurring in judgment) (emphasis added).

387 U.S. 523 (1967).

359 U.S. 360 (1959).

Id. at 538. See also See v. City of Seattle, 387 U.S. 541 (1967) (applying principles announced in Camara to fire inspection of a commercial warehouse). For the classic explanation of Camara, see LaFave W. R. , “Administrative Searches and the Fourth Amendment,” Supreme Court Review (1967): 1–38.

Schulhofer , supra note 126, at 100.

Id. at 101.

480 U.S. 709 (1987).

Id. at 723 (plurality opinion).

Id. at 725 (quoting T.L.O., 469 U.S. at 351 [ Blackmun J. , concurring in judgment]).

Id. at 724 (quoting T.L.O., 469 U.S. at 351 [ Blackmun J. , concurring in judgment]).

Id. (“In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner.”)

Id. at 725–26. Although Justice Scalia objected to certain aspects of Justice O'Connor's plurality, he did agree with her decision to apply Justice Blackmun's special needs formula. See id. at 732 ( Scalia J. , concurring in the judgment) (“Such ‘special needs’ are present in the context of government employment…. I would hold that government searches to retrieve work-related materials or to investigate violations of workplace rules – searches of the sort that are regarded as reasonable and normal in the private-employer context – do not violate the Fourth Amendment.”)

Id. at 732 ( Blackmun J. , dissenting).

Id. at 741 (emphasis added).

Id. at 742. While Justice Blackmun concluded that the facts presented no special need for dispensing with the warrant requirement, his comments implied that he might be willing to find that certain public employer searches of employees are consistent with the special needs exception. See also, Schulhofer , supra note 126, at 101–102 (noting that Justice Blackmun “agreed that some employer searches could be valid under a diluted standard, but found no ‘special need’ in Ortega itself.”)

483 U.S. 868 (1987).

Id. at 873.

Id. at 874.

Id. at 873–74.

Id. at 875.

Id. Four Justices dissented in Griffin. Writing for the dissenters, Justice Blackmun argued that the “need for supervision in probation” presents a special need beyond the normal need for law enforcement. Id. at 881 ( Blackmun J. , dissenting). Accordingly, Justice Blackmun argued that a special need justified a search of probationer's home on a lesser level of suspicion than probable cause, namely, reasonable suspicion. But he would require that such a search be authorized by a judicial warrant as a means of “protecting a probationer's privacy.” Id. at 882.

Two aspects of Griffin indicated that a majority of the Court in 1987 would apply the special needs exception with consider leeway in favor of the state. First, although the Court ruled that the search of Griffin's home was reasonable because, inter alia, it was done pursuant to an administrative regulation that required “reasonable grounds” for a search, the facts in Griffin provided, at best, a “feeble justification” for a search. Griffin, 483 U.S. at 887–90 ( Blackmun J. , dissenting) (explaining that the facts did not justify a search even under a reasonable suspicion standard). Second, the clear presence of a law enforcement motive for the challenged search did not negate the applicability of the special needs exception. As Justice Scalia would subsequently acknowledge years later, “the special-needs doctrine was developed, and is ordinarily employed, precisely to enable searches by law enforcement officials who, of course, ordinarily have a law enforcement objective” for their searches. Ferguson 532 U.S. at 100 ( Scalia J. , dissenting). A majority of the current Court, however, has not embraced Justice Scalia's position. See infra notes 186–204 and accompanying text.

Schulhofer , supra note 126, at 115.

489 U.S. 602 (1989).

489 U.S. 656 (1989).

Skinner, 489 U.S. at 620.

Id. at 623 (citations omitted).

Id. at 620–21 (quoting 49 CFR § 219.1(a) (1987) [footnote omitted].

Id. at 621, n.5.

Id. (citations omitted).

Id. at 621, n.5. (“each sample provided under [the regulations]… may be available to…a party in litigation upon service of appropriate compulsory process on the custodian”), quoting 49 C.F.R. § 219.211(d) (1987). The revised version of 49 C.F.R. § 219.211(d) omits any reference to making test results available to third parties in litigation.

Id. at 650 (Marshall, J., dissenting).

Id. at 651–52.

Schulhofer , supra note 126, at 138.

Professor Schulhofer does recognize that “[r]outine law enforcement involvement [and access to test results], together with slender or half-hearted regulatory and remedial goals, would indicate that the administrative features of the program were merely pretextual. If so, the program would not involve ‘special needs, beyond the normal need for law enforcement,’ and the probable cause requirement would have to apply.” Id.

Von Raab, 489 U.S. at 666.

See Schulhofer , supra note 126, at 140 (“In one sense, Von Raab presents a stronger case for administrative treatment [than Skinner] because law enforcement use of test results was prohibited. Von Raab appears to involve a purely employment-related program.”)

See Von Raab, 489 U.S. at 667 (under the policy, “every employee who seeks a transfer to a covered position knows that he must take a drug test, and is likewise aware of the procedures the Service must follow in administering the test. A covered employee is simply not subject ‘to the discretion of the official in the field.’ The process becomes automatic when the employee elects to apply for, and thereafter pursue, a covered position.”)

See id. at 674.

515 U.S. 646 (1995).

536 U.S. 822 (2002).

See Acton , 515 U.S. at 653.

536 U.S. at 830 (quoting Acton, 515 U.S. at 656).

515 U.S. at 658 (footnote omitted).

536 U.S. at 833.

520 U.S. 305 (1997).

Id. at 309. Only Chief Justice Rehnquist dissented from the majority opinion.

532 U.S. 67 (2001).

Id. at 84.

Id. (footnote omitted).

Chandler, 520 U.S. at 318 (emphasis added).

Id. at 319.

Id. at 322. Interestingly, in dicta, Justice Ginsburg noted that “where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’ – for example, searches now routine at airports and at entrances to courts and other official buildings.” Id. at 323 (citations omitted) (emphasis added).

Ferguson, 532 U.S. at 78. The previous cases Justice Stevens had in mind were Chandler, Acton, Skinner, and Von Raab. See id., at 78, n.12 (citing cases).

Id. at 79.

Id. at 80.

Id. at 82–83 (footnotes omitted).

Chandler, 520 U.S. at 322.

Justice Ginsburg's opinion on this point marks a change in the law. As Chief Justice Rehnquist noted in his dissent, prior special needs cases had not required the state to establish that its interest was especially important. “Under [previous] precedents, if there was a proper governmental purpose other than law enforcement, there was a ‘special need,’ and the Fourth Amendment then required the familiar balancing between that interest and the individual's privacy interest.” Id. at 325 ( Rehnquist C.J. , dissenting). Cf. Ferguson, 532 U.S. at 81 (“In Chandler,…we did not simply accept the State's invocation of a ‘special need.’ Instead, we carried out a ‘close review’ of the scheme at issue before concluding that the need in question was not ‘special,’ as that term has been defined in our cases.”)

Justice Kennedy voted to invalidate the policy in Ferguson, but claimed that the majority's distinction between “the ultimate goal and immediate purpose” of the government interests pursued, “lacks foundation” in the Court's special needs cases. Ferguson, 532 U.S. at 86–87. According to Kennedy, all of the special needs cases “have turned upon what the majority terms the policy's ultimate goal.” Id. at 87. Put simply, in deciding whether special needs exist in a particular setting, the Court has always focused on the ultimate goal in carrying out the search, “rather than its proximate purpose.” Id. As Kennedy noted, “although procuring evidence is the immediate result of a successful search, until [Ferguson] that procurement has not been identified as the special need which justifies the search.” Id. at 88.

Id. at 81 (quoting Edmond, 531 U.S. at 44).

Id. at 84, n.20. See also id. at 88 ( Kennedy J. , concurring in judgment) (noting that earlier cases did not sanction “the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives.”)

See id. at 81, n.15 (stating that Griffin “is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large.”)

Id. at 84.

482 U.S. 691 (1987).

Schulhofer , supra note 126, at 103.

Burger, 482 U.S. at 693.

Id. at 716.

Ferguson, 532 U.S. at 84, n.21 (citation omitted).

Id. (citation omitted).

Saltzburg and Capra , supra note 114, at 419–20.

A good argument can be made that Burger was never intended to be a special needs case. While Burger makes a single reference to the special needs exception, see 482 U.S. at 702, (after describing the lesser privacy interests of vehicle dismantlers, “conclud[ing] that, as in other situations of ‘special need,’” a warrantless search may well be reasonable), the bulk and substance of the Court's analysis is focused on administrative search precedents. Further, Burger never identifies a particular “special need” that justifies the suspicionless search authorized by the statute. Thus, although in a previous article I wrote that the Burger Court “invoked the special needs doctrine to uphold a New York law authorizing warrantless, suspicionless searches of automobile junkyards,” Maclin T. , “Constructing Fourth Amendment Principles From The Government Perspective: Whose Amendment Is It, Anyway?” American Criminal Law Review 25 (1988): 669–742, at 735, in retrospect, that description was probably mistaken. Although Burger certainly shares many similarities to the modern special needs cases, I now believe that Burger is properly categorized with the administrative search cases.

531 U.S. 32 (2000).

Id. at 34.

Id. at 40. In another passage, Justice O'Connor noted the Court's reluctance to “recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.” Id. at 43. Standing alone, Edmond appeared to establish a broad rule against roadblocks designed to serve the state's “general interest in crime control.” Four years later, however, the Court demonstrated that the phrase “general crime control” would not be broadly construed. In Illinois v. Lidster, 124 S. Ct. 885 (2004), the Court upheld a roadblock where police stopped cars to ask motorists for information about a crime that occurred at the same location one week earlier. Lidster was seized at the roadblock, arrested for driving under the influence of alcohol, and subsequently prosecuted. The Lidster Court distinguished this roadblock from the illegal roadblock in Edmond because the primary purpose “was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals.” 124 S. Ct. at 889. Lidster demonstrates that Edmond's use of the phrase “general interest in crime control” does not cover “every ‘law enforcement’ objective.” Id. (quoting Edmond, 531 U.S. at 44, n.1).

Edmond, 531 U.S. at 45–46.

Id. at 46.

Id. at 47, n.2; see also id. (“Specifically, we express no view on the question whether police may expand the scope of a license or sobriety checkpoint seizure in order to detect the presence of drugs in a stopped car.”)

Burger, 482 U.S. at 716.

Id. (citation and footnote omitted).

4 LaFave W. R. , Search and Seizure § 9.7(b) at 709 (4th ed. 2004).

Ferguson, 532 U.S. at 84, n.21.

Kaye , “DNA Sampling on Arrest,” supra note 83, at 496 (noting that “neither Edmond nor Ferguson reaches the more vexing question of what evidence can be used to infer purpose when the government contends that its immediate purpose in instituting an investigative practice is something other than (or in addition to) pure crime control”) (footnote omitted). It is important to note that Edmond's analysis will not be controlling in a special needs context. Although the Court's roadblock cases are sometimes lumped together with the special needs cases, Ferguson clarified that the Court's roadblock cases and special needs cases are separate doctrinal categories. Ferguson, 532 U.S. at 84, n.21.

Ferguson, 532 U.S. at 81 (quoting Edmond, 531 U.S. at 44).

La. R.S. 15 § 602 (2003) (emphasis added).

See supra note 81.

Timberg , supra note 46.

Sorokin , supra note 47.

Clines , supra note 48.

See supra note 50.

La. R.S. § 15:602 (2003).

Sorokin , supra note 47.

Ortega, 480 U.S. at 724 (plurality opinion). See also Von Raab, 489 U.S. at 679 (“Because the testing program adopted by the Customs Service is not designed to serve the ordinary needs of law enforcement…[w]e hold that the suspicionless testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions that require the incumbent to carry a firearm, is reasonable.”) See also, Skinner, 489 U.S. at 621 (in upholding urinalysis testing of covered railroad employees, the Court stated “[a]bsent a persuasive showing that the FRA's testing program is [designed to gather criminal evidence], we assess the FRA's scheme in light of its obvious administrative purpose.”)

Ferguson, 532 U.S. at 81 (quoting Edmond, 531 U.S. at 44).

Cf. Rothstein & Carnahan , supra note 83, at 154 (stating that “Edmond and Ferguson raise serious Fourth Amendment concerns with respect to the constitutionality of the data bank laws, and even greater concerns as to the constitutionality of state statutes that require DNA from certain classes of offenders upon arrest”) (footnote omitted). Finally, it should be noted that characterizing DNA searches of arrestees as a “public safety” goal should not justify application of the special needs exception. In many instances, the line between “public safety” and law enforcement is imperceptible. For example, in Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004), organizers of an annual protest at a military base challenged a police policy requiring all protesters to undergo metal detector searches. The city argued the searches were valid under the special needs exception because they keep protesters and others safe by detecting weapons and other contraband. The court rejected the city's argument. Speaking for the court, Judge Tjoflat explained that “it is difficult to see how public safety could be seen as a governmental interest independent of law enforcement; the two are inextricably intertwined.” Id. at 1312–1313.

Skinner, 489 U.S. at 621, n.5 (quoting Burger, 482 U.S. at 716–17, n.27 (internal quotation marks omitted).

See id. at 650 ( Marshall J. , dissenting) (“Most strikingly, the agency's regulations not only do not forbid, but, in fact, appear to invite criminal prosecutors to obtain the blood and urine samples drawn by the [agency] and use them as the basis of criminal investigations and trials.”) (citation omitted).

Id. at 621.

Ferguson, 532 U.S. at 71–72.

Id. at 84.

Va. Code Ann. § 19.2–310.5 (2002).

Cf. Kaye , “Two Fallacies,” supra note 83, at 191 (“there is plenty of empirical evidence that bigger data bases solve more crimes”) (footnote omitted).

Id. at 203.

Cf. 5 LaFave, supra note 215, § 10.3(b) at 115 (noting that the police involvement in Griffin was at the request of the probation officer to “provid[e] protection,” and thus was “unobjectionable,” and also observing that the Court “did not have occasion to speak to the limits of police involvement in probationer searches in Griffin, but surely there are limits, as is reflected by the existing body of law [from the lower courts] on that subject”) (footnotes omitted); Burger, 482 U.S. at 717 (explaining that there is no “constitutional significance in the fact that police officers, rather than ‘administrative’ agents, are permitted to conduct the [administrative search]”).

Ferguson, 532 U.S. at 88 ( Kennedy J. , concurring in judgment) (explaining that “there was substantial law enforcement involvement in the [search] policy from its inception”).

Id. at 84, n.20.

La R.S. § 15:607 (2003).

Ferguson, 532 U.S. at 88 ( Kennedy J. , concurring in judgment).

In a similar vein, Edmond left open whether police can establish a roadblock with the “primary purpose of checking licenses or driver sobriety [a permissible purpose under the roadblock cases] and a secondary purpose of interdicting drugs [an impermissible purpose under the roadblock cases].” Edmond, 532 U.S. at 47, n.2.

Ferguson, 532 U.S. at 84, n.21.

People v. Burger , 493 N.E. 2d 926, 930 (N.Y. 1986), rev'd, New York v. Burger, 482 U.S. 691 (1987).

Id. at 929.

Id. at 930 (citation omitted).

Burger, 482 U.S. at 712.

Jones v. Murray , 962 F.2d 302 (4th Cir. 1992) (holding the Virginia DNA collection statute reasonable and rejecting convicted felons' Fourth Amendment challenge); Roe v. Marcotte, 193 F.3d 72 (2d Cir., 1999) (upholding the constitutionality of a Connecticut statute authorizing the DNA testing of convicted sex offenders because the testing was minimally intrusive and advanced the important state interest of promoting safety by identifying convicted sex offenders).

Kaye, “DNA Sampling on Arrest,” supra note 83, at 487 (footnote omitted).

Kaye, “Two Fallacies,” supra note 83, at 203.

Kincade, 379 F.3d at 857, n.16 ( Reinhardt J. , dissenting). The analogy to fingerprinting is flawed in another sense. “[U]nlike fingerprints, DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time. Like DNA, a fingerprint identifies a person, but unlike DNA, a fingerprint says nothing about the person's health, their propensity for particular disease, their race and gender characteristics, and perhaps even their propensity for certain conduct.” Id. at 842 ( Gould J. , concurring). See also Rothstein & Carnahan , supra note 83, at 156–57 (distinguishing DNA samples from fingerprinting).

Ferguson, 532 U.S. at 81 (quoting Edmond, 531 U.S. at 44).

Id. at 83 (footnote omitted).

Throughout this article, I have endeavored to provide an objective analysis of the Court's Fourth Amendment doctrine. In light of that goal, the article reaches the conclusion that neither Virginia's nor Louisiana's DNA arrestee law satisfies the special needs formula. If, however, the Court were to actually hear a challenge to the taking and testing of an arrestee's DNA, I doubt the Court will strike down the law on Fourth Amendment or any other constitutional grounds. Notwithstanding the result and reasoning of Ferguson, I predict a majority of the Court will be unwilling to invalidate such a statute. A majority of the Court will construct a “Good for This Day and Train Only” theory in order to uphold the search. United States v. Knights, 534 U.S. 112 (2001), is a recent example of this occasionally-used phenomenon on the Court. Knights upheld a warrantless search by police officers of a probationer's home based upon a reasonable suspicion that criminal evidence would be discovered. Knights did not rely on Griffin or the special needs cases, because the search was clearly related to law enforcement purposes and conducted without the involvement or knowledge of probation officials. Knight's holding rests upon what the Court cites as “our general Fourth Amendment approach of “examining the totality of the circumstances.” Id. at 118 (citation omitted). Such a “totality” or “general reasonableness'” model is a standard-less formula that permits a majority of the Court to do what it pleases without having to justify its result or reasoning under traditional Fourth Amendment doctrine.