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91 N.C. L. Rev. Addendum 1 (2012-2013)

handle is hein.journals/addendum4 and id is 1 raw text is: DRAWING LINES: UNRELATED PROBABLE CAUSE AS A PREREQUISITE TO EARLY DNA COLLECTION DAVID H. KAYE* Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This Article shows that this position is largely unfounded. Either warrantless, suspicionless DNA collection before conviction is unconstitutional across the board or it is permissible immediately after the arrest. The Constitution does not make a probable-cause determination for an unrelated offense the dispositive moment. INTRODUCTION ................................................. ........2 1. FRAMING THE ISSUE.....................3.............3 II. TOTALITY-OF-THE-CIRCUMSTANCES BALANCING .. ................6 A. Pool's Premises .......................... ...........6 B. Other Arguments ..................6...........6 C. Changing Interests Before Conviction............. ......10 D. Presuming Innocence................................13 III. BETTER MODES OF ANALYSIS ................... ..........15 A. Special-Needs Balancing ........... ..................18 B. A Categorical Exception ................................18 CONCLUSION................................................19 * 0 2012 David H. Kaye. ** Distinguished Professor and Weiss Family Scholar, The Pennsylvania State University Dickinson School of Law. and Graduate Faculty Member, Forensic Science Program, Eberly College of Science. The author is grateful to Kevin Lapp and Joy Radice for their comments.

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