In a 2004 en banc decision, the Ninth Circuit Court of Appeals upheld as reasonable under the Fourth Amendment the congressionally mandated extraction of DNA from certain federal offenders who were on parole, probation, or supervised release in United States v. Kincade. This reversed the panel opinion, marking the first time a federal court had permitted compulsory DNA extraction from non-incarcerated federal offenders. In dissent, Judge Reinhardt predicted that the majority’s rationale “would set us on a dangerous path,” including the inevitable extension of DNA collection from convicted offenders to mere arrestees. Judge Kozinski similarly called the majority ruling “an engraved invitation to future expansion.” He remarked that “[m]y colleagues in the plurality assure us that, when [the] day comes, they will stand vigilant and guard the line, but by then the line—never very clear to begin with—will have shifted.”
Part I of this essay briefly reviews the federal statute that authorizes DNA extraction and the Fourth Amendment principles that underlie the current constitutional challenges to it. Part II identifies the various, and sometimes competing, rationales offered to justify the constitutionality for collecting DNA from individuals before they have been convicted of a crime. Then, Part III argues for a recalibration of the weight that courts currently place on the privacy interest in, and the government’s need for, DNA samples from individuals who are presumed innocent. Finally, Part IV identifies four issues yet to be addressed regarding pre-conviction DNA extraction. The holdings of the current cases leave open questions about whether the government’s interest in pre-conviction DNA extraction can trump the Fourth Amendment in the absence of a judicial or grand jury finding of probable cause, or when the arrestee is not detained or is charged with only a misdemeanor. Such cases quickly strain the current rationales of circuit courts and cast serious doubt on the constitutionality of the broadly worded statute.