Digital Commons @ University of Georgia School of Law
Abstract
Genetic privacy and police practices have come to thefore in the criminal justice system. Case law and storiesin the media document that police are surreptitiouslyharvesting the out-of-body DNA of putative suspects.Some sources even indicate that surreptitious databanking may also be in its infancy. Surreptitiousharvesting of out-of-body DNA by the police is currentlyunregulated by the Fourth Amendment. The few courtsthat have addressed the issue find that the police are freeto harvest DNA abandoned by a putative suspect in apublic place. Little in the nascent surreptitious harvestingcase law suggests that surreptitious data banking wouldbe regulated either under current judicial conceptions ofthe Fourth Amendment.The surreptitious harvesting courts have misapplied theKatz reasonable-expectation-of-privacy test recentlyreaffirmed in United States v. Jones by the SupremeCourt. They have taken a mistakenly narrow property-based approach to their analyses. Given the potential forfuture abuse of the freedom to collect anyone\u27s out-of-bodyDNA without even a hunch, this Article proposes that the
police do not need a search warrant or probable cause toseize an abandoned item in or on which cells and DNAexist. But they do need a search warrant supported byprobable cause to enter the cell and harvest the DNA.An interdisciplinary perspective on the physical,informational, and dignitary dimensions of geneticprivacy suggests that an expectation of privacy in thekaleidoscope of identity that is in out-of-body DNA. Usinglinguistic theory on the use of metaphors, the Article alsoexamines the use of DNA metaphors in popular culture asa reference point to explain a number of features of coreidentity in contrast to the superficiality of fingerprintmetaphors. Popular culture\u27s frequent uses of DNA as areference point reverberate in a way that suggests thatsociety does recognize as reasonable an expectation ofprivacy in DNA
