Who needs special needs? On the constitutionality of collecting DNA and other biometric data from arrestees.

D. H. Kaye For years, the collection of DNA samples from individuals arrested for criminal misconduct has been advocated by police officials and endorsed by politicians.1 Louisiana, Virginia, California, and South Dakota have adopted laws to add DNA profiles derived from these samples to their DNA databases.2 Texas provides for DNA to be taken after indictment but before conviction.3 Although the U.S. Department of Justice initially shied away from the issue,4 the DNA Fingerprint Act of 20055 authorizes the collection of DNA from individuals arrested for violations of certain Federal criminal laws,6 and the inclusion in the national DNA database of all profiles from states that type DNA prior to conviction.7 But are these laws constitutional? In an article in a previous issue of this journal, and reprinted in this issue, Professor Tracey Maclin concludes that fidelity to precedent should lead the Supreme Court to strike down two of the Louisiana and Virginia laws as violations of the Fourth Amendment.8 The article succinctly traces the background of some of this legislation, incisively identifies critical issues, and cogently describes the somewhat undisciplined body of Supreme Court case law that constitutes the “special needs exception” to the general rule that police must obtain a judicial warrant based on probable cause before searching the person or property of an individual for evidence of a crime. Yet, in the same breath that Maclin announces “an objective analysis of the statute themselves [sic], when combined with an objective reading of the Court’s precedents, indicates that the statutes should be declared unconstitutional,”9 he murmurs that “I doubt the Court will strike down the law on Fourth Amendment or any other constitutional grounds” but rather will resort to “a ‘totality’ or ‘general reasonableness’ model [which] is a standardless formula that permits a majority of the Court to do what it pleases without having to justify its result or reasoning under traditional Fourth Amendment doctrine.”10 In contrast, this article shows that the Supreme Court’s opinions do not necessarily imply that DNA sampling at the point of arrest is unconstitutional. Neither do they indicate that the only way to uphold the practice is an undisciplined, result-oriented approach to the issue. To explain this different perspective on the question, Part I summarizes Professor Maclin’s