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Hastings Law Journal

Abstract

This Note examines current developments in state DNA databank laws and the controversy surrounding the passage of California's latest DNA databank statute to predict that the next step in DNA databank expansion has arrived-namely, the collection of DNA from former arrestees, who neither have been convicted of a felony nor remain in government custody. Ultimately, the Note suggests that despite the recent trend towards expanding DNA databases around the country, the DNA sampling of former arrestees crosses a bright line that represents the constitutional end of such expansion.

In pointing out that courts have often relied on a plaintiff's status as a supervisee or ward of the state to uphold the constitutionality of DNA databank statutes, the Note argues that traditional legal justifications cannot apply to compulsory DNA extraction from former arrestees. The Note proceeds to describe the current state of Fourth Amendment constitutional law with regard to DNA databanks, and contends that traditional "special needs" analysis applies to suspicionless searches of individuals free from government supervision. The Note concludes that suspicion-less DNA sampling from former arrestees does not present a special need beyond the normal need for law enforcement, and thus violates the Fourth Amendment's prohibition of unreasonable searches and seizures.

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