Another Katz Moment?: Privacy, Property, and a DNA Database

Abstract

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may routinely collect DNA upon arrest for a serious crime. This Note discusses the routine collection of DNA and how it ought to be situated within evolving Fourth Amendment doctrine. Given the nature of DNA and growing DNA databases, law enforcement use of DNA—like its use of other surveillance technologies—should be limited by the Fourth Amendment. DNA collection may not fit neatly within Fourth Amendment jurisprudence, but neither did cell phones, GPS tracking devices, or CSLI when the Court chose to include them under such protections.