New law review article: “North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010”

North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010 by Lauren Hobson, 89 N.C. L. Rev. ___ (forthcoming 2011) [sorry, the PDF link on this site does not work]. Abstract:

Most Americans can probably hum a few bars of the theme song to one of television’s most successful franchises: Law & Order. Watching the ever-cynical Detective Briscoe investigate crimes alongside the good-looking Detective Logan made viewers root for police to catch New York City’s criminals. Sometimes, the “bad guys” won when the judge excluded the smoking gun from trial, introducing Americans to some of the costs to the criminal justice system in preserving defendants’ rights. As much as society hates seeing a criminal go free, maintaining a defendant’s rights before and during trial is integral to the American justice system. In passing the DNA Database Act of 2010, the North Carolina General Assembly has reduced the costs on law enforcement and prosecutors to obtain a conviction but increased costs to the civil liberties of criminal defendants who have not yet been tried by a jury of their peers. At first blush, one might wonder, “What is wrong with using DNA samples to close cold cases and close fresh ones even faster?” The problem lies in trampling arrested individuals’ civil rights in the footrace to a conviction.

This Recent Development will argue that collecting an arrestee’s DNA under the DNA Database Act of 2010 without a search warrant violates the Fourth Amendment’s protection against unreasonable searches. In Part I, this Recent Development will discuss the passage of the DNA Database Act and the statute itself. Part II will establish that a cheek swab of an arrested individual is a search. Since “[s]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions,” Part III will demonstrate that none of the “well-delineated exceptions,”—including search incident to lawful arrest, inventory search, or plain view—justify the warrantless search. Furthermore, as discussed in Part IV, at least two state courts differ in their treatment of this issue, and the Minnesota Court of Appeals’ invalidation of a statute analogous to North Carolina’s is instructive on the Fourth Amendment unreasonableness of cheek swabs under such statutes. Finally, Part V will show that the policy reasons advanced by supporters of DNA database laws are not persuasive, and there is a less constitutionally questionable method to achieve many of the same goals.