90 N.C. L. Rev. Addendum 157 (2012)
In a 2004 en banc decision, the Ninth Circuit Court of Appeals upheld as reasonable under the Fourth Amendment the congressionally mandated extraction of DNA from certain federal offenders who were on parole, probation, or supervised release in United States v. Kincade. This reversed the panel opinion, marking the first time a federal court had permitted compulsory DNA extraction from non-incarcerated federal offenders. In dissent, Judge Reinhardt predicted that the majority's rationale "would set us on a dangerous path," including the inevitable extension of DNA collection from convicted offenders to mere arrestees. Judge Kozinski similarly called the majority ruling "an engraved invitation to future expansion." He remarked that "[m]y colleagues in the plurality assure us that, when [the] day comes, they will stand vigilant and guard the line, but by then the line-never very clear to begin with-will have shifted."
The Kincade plurality specifically addressed the dissenters' "alarmist tone" about the expansive consequences of its analysis, averring that "[n]othing could be further from the truth." Yet after Congress expanded DNA collection to include arrestees, and just as Judges Reinhardt and Kozinski warned, federal courts have failed to guard the line against further expansion of compulsory DNA extraction. In 2010, a Ninth Circuit panel in United States v. Pool upheld as reasonable the suspicionless, warrantless pre-conviction extraction of DNA from those indicted on federal felonies. Critical to its holding was the magistrate judge's finding of probable cause prior to the indictment, which the court called a "watershed event" allowing DNA collection prior to a finding of guilt. While the Pool decision was recently vacated as moot following the defendant's pleading guilty, a sharply divided Third Circuit sitting en banc likewise upheld suspicionless, warrantless pre-conviction DNA extraction in 2011. In United States v. Mitchell, the Third Circuit reversed the district court and held that compulsory DNA collection from federal arrestees is constitutional. Foreshadowing even further expansion of DNA extraction, the Third Circuit suggested that a law enforcement officer's finding of probable cause to arrest would suffice to justify pre-conviction DNA collection. A petition for certiorari remains pending. Also in 2011, in United States v. Thomas, the Western District of New York upheld DNA extraction as a condition of pretrial release for an indicted federal defendant.
With cases like Mitchell, Thomas, and Pool, federal courts have upheld Congress's steady expansion of federal DNA extraction to permit collection not just from those convicted of select federal offenses, but now from individuals who have not yet been convicted of any crime. And each step in the expansion has been justified in part by its analytic proximity to the one that preceded it. In response to Mitchell and with an eye toward forthcoming cases, including a likely review of the issue before the Supreme Court soon, this essay examines the constitutionality of compulsory pre-conviction DNA extraction. It demonstrates that courts have upheld an ever-widening regime of statutorily compelled DNA extraction without adjusting the weight accorded to the competing interests at stake as the practice has broadened its reach. Should the trend continue, courts will soon permit after a series of small steps what many seem hesitant to do in one fell swoop (or, indeed, at all): hold that the government may compel DNA extraction from all individuals arrested by federal authorities, regardless of the charge or custodial status of the arrestee, without a warrant or any individualized suspicion that the search will produce evidence of criminality.