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Publication Date

2013

Abstract

Genetic privacy and police practices have come to the
fore in the criminal justice system. Case law and stories
in the media document that police are surreptitiously
harvesting the out-of-body DNA of putative suspects.
Some sources even indicate that surreptitious data
banking may also be in its infancy. Surreptitious
harvesting of out-of-body DNA by the police is currently
unregulated by the Fourth Amendment. The few courts
that have addressed the issue find that the police are free
to harvest DNA abandoned by a putative suspect in a
public place. Little in the nascent surreptitious harvesting
case law suggests that surreptitious data banking would
be regulated either under current judicial conceptions of
the Fourth Amendment.
The surreptitious harvesting courts have misapplied the
Katz reasonable-expectation-of-privacy test recently
reaffirmed in United States v. Jones by the Supreme
Court. They have taken a mistakenly narrow property-
based approach to their analyses. Given the potential for
future abuse of the freedom to collect anyone's out-of-body
DNA without even a hunch, this Article proposes that the

police do not need a search warrant or probable cause to
seize an abandoned item in or on which cells and DNA
exist. But they do need a search warrant supported by
probable cause to enter the cell and harvest the DNA.
An interdisciplinary perspective on the physical,
informational, and dignitary dimensions of genetic
privacy suggests that an expectation of privacy in the
kaleidoscope of identity that is in out-of-body DNA. Using
linguistic theory on the use of metaphors, the Article also
examines the use of DNA metaphors in popular culture as
a reference point to explain a number of features of core
identity in contrast to the superficiality of fingerprint
metaphors. Popular culture's frequent uses of DNA as a
reference point reverberate in a way that suggests that
society does recognize as reasonable an expectation of
privacy in DNA.

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