{"id":5371,"date":"2011-03-31T05:00:18","date_gmt":"2011-03-31T05:00:18","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-03-31T05:00:18","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5371","title":{"rendered":"New law review article: “North Carolina\u2019s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010”"},"content":{"rendered":"

North Carolina\u2019s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010<\/a> by Lauren Hobson, 89 N.C. L. Rev. ___ (forthcoming 2011) [sorry, the PDF link on this site does not work]. Abstract:<\/p>\n

\nMost Americans can probably hum a few bars of the theme song to one of television\u2019s 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\u2019s criminals. Sometimes, the \u201cbad guys\u201d 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\u2019 rights. As much as society hates seeing a criminal go free, maintaining a defendant\u2019s 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, \u201cWhat is wrong with using DNA samples to close cold cases and close fresh ones even faster?\u201d The problem lies in trampling arrested individuals\u2019 civil rights in the footrace to a conviction.<\/p>\n

This Recent Development will argue that collecting an arrestee\u2019s DNA under the DNA Database Act of 2010 without a search warrant violates the Fourth Amendment\u2019s 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 \u201c[s]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment\u2014subject only to a few specifically established and well-delineated exceptions,\u201d Part III will demonstrate that none of the \u201cwell-delineated exceptions,\u201d\u2014including search incident to lawful arrest, inventory search, or plain view\u2014justify 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\u2019 invalidation of a statute analogous to North Carolina\u2019s 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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-5371","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5371","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5371"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5371\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5371"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5371"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5371"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}