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Government Retention and Use of Unlawfully Secured DNA Evidence

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Document pages: 18 pages

Abstract: In Maryland v. King, the Supreme Court allowed police to extract a DNA sample from the cheek of a lawfully arrested individual without first securing a warrant, likening the sample to photos and fingerprints routinely taken during booking. Although King has already prompted a substantial body of critical commentary, to date an important outgrowth of the decision has eluded attention: What if, unlike in King, an individual is unlawfully arrested, without probable cause, yet police secure a DNA sample pursuant to a routine booking procedure? In his King dissent, Justice Scalia surmised that “[a]s an entirely predictable consequence of [the majority’s] decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” As it turns out, under current exclusionary rule doctrine, there is considerable truth to Justice Scalia’s assessment. In a line of cases stretching back several decades, courts have permitted police to retain and use for investigative purposes photos and fingerprints secured through unlawful arrests. Suppression is required when it can be shown that the purpose of the illegal arrest was to secure the prints, photos, or both — a finding often undercut when the evidence is acquired pursuant to a routine booking procedure. Against this backdrop, the King majority’s willingness to uncritically couple DNA samples with fingerprints and photos assumes added importance. This article, part of a symposium hosted by the Texas Tech School of Law, addresses whether the coupling obliges an equally uncritical application of exclusionary rule doctrine vis-à-vis unlawfully secured DNA. Answering in the negative, the article urges legislative action to limit the government’s ability to retain and use unlawfully secured DNA.

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