A bill passed by the House in May 2010, the Katie Sepich Enhanced DNA Collection Act of 2010 ( H.R. 4614 ), would provide grant funding incentives to states that collected DNA samples from persons who are at least 18 years old who are arrested for specified types of crimes. However, prior cases involved the collection of DNA samples from people who had been convicted of a crime. Typically, a law enforcement agency's phlebotomist collects a blood sample pursuant to state or federal law. In addition, the federal government and some states now authorize compulsory collection from people whom the government has arrested or detained but not convicted. The U.S. Department of Justice implemented the authorization in a final rule that took effect January 9, 2009. The Court's Fourth Amendment analysis falls into three general categories. Courts have relied on different legal tests in these cases. Reasonableness as Applied to Arrestees

As mentioned, to date, only a handful of state and federal judicial decisions address compulsory collection of DNA from persons awaiting a criminal trial. Two federal district courts have issued rulings in cases challenging the federal authorities for pre-conviction DNA collection. In United States v. Pool , the U.S. District Court for the Eastern District of California upheld such collection. In United States v. Mitchell , the U.S. District Court for the Western District of Pennsylvania reached the opposite result. Both courts applied the general balancing test to determine whether such collection was reasonable under the Fourth Amendment. In contrast, because it viewed DNA collection as presenting a far greater privacy intrusion than fingerprinting, the Mitchell court held that although the government has a legitimate interest in identifying suspects, that interest is one "that can be satisfied with a fingerprint and photograph" rather than with the more intrusive DNA sample. Storage of DNA Profiles after Punishment Ends

A final issue that might arise in future DNA cases is the constitutionality of storing convicts' DNA profiles after their sentences have ended. Conclusion

Although nearly all courts that have addressed the issue have upheld the compulsory collection of DNA from persons who have been convicted, no judicial consensus has yet emerged regarding the constitutionality of such collection from persons who have been arrested or are facing charges prior to a criminal trial. The two U.S. district court cases addressing pre-conviction DNA collection pursuant to the federal law illustrate that outcomes in future cases involving arrestees may depend on courts' resolution of at least two key issues, namely: (1) what, if any, distinction exists between the reasonable expectation of privacy of an arrestee and a convict; and (2) the degree of privacy intrusion perceived as a result of a DNA sample. The latter question may turn on courts' framing of the role of DNA collection—that is, whether it is analogous to the long-upheld practice of fingerprinting or whether it represents a greater privacy intrusion.
Relying on different legal standards, courts have historically upheld laws authorizing law enforcement's compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment to the U.S. Constitution. However, prior cases reviewed the extraction of DNA samples from people who had been convicted on criminal charges. New state and federal laws authorize the collection of such samples from people who have been arrested or detained but not convicted. On the federal level, the U.S. Department of Justice implemented this expanded authority with a final rule that took effect January 9, 2009. The Katie Sepich Enhanced DNA Collection Act of 2010 (H.R. 4614), a bill passed by the House, would provide grant funding bonuses to states that authorized the collection of DNA from persons arrested for specified types of crimes.
To date, only a few courts have reviewed the constitutionality of pre-conviction DNA collection pursuant to the new federal rule. The two federal district courts to have considered the issue applied the same Fourth Amendment test—the "general balancing" or "general reasonableness" test—but reached opposite conclusions. In United States v. Pool, the U.S. District Court for the Eastern District of California held that the government's interest in collecting a DNA sample from a person facing charges outweighed any intrusion of privacy. In United States v. Mitchell, the U.S. District Court for the Western District of Pennsylvania reached the opposite conclusion.
Points of disagreement between the two district court opinions are likely to reemerge as themes in future decisions addressing pre-conviction DNA collection. One difference is whether the defendant's status as a person facing criminal charges was viewed as impacting the scope of Fourth Amendment protection. Another is the extent to which the government was seen as having a legitimate interest in obtaining a DNA sample in particular, rather than a fingerprint or another identifier. Finally, the courts disagreed regarding the degree of the privacy intrusion caused by collecting a DNA sample. The latter questions are framed by a larger debate about the nature and role of DNA in law enforcement. For example, is a DNA sample merely a means by which to identify a person, like a fingerprint? Or does it present a greater privacy intrusion?
A few additional factors might complicate courts' analyses of DNA collection in future cases. For example, emerging scientific research suggests that the type of DNA used in forensic analysis might implicate a greater privacy intrusion than courts had previously assumed. In addition, most courts have yet to review the constitutionality of storing convicts' DNA profiles beyond the time of sentence completion.