The State's purported interests are made less reasonable by the fact that DNA collection can wait until a person has been convicted, thus avoiding all the threats to privacy discussed in this opinion. We simply will not allow warrantless, suspicionless searches of biological materials without a showing that accurate identification was not possible using 'traditional' methods. In cases where DNA is required for conviction, there will be likely substantial other evidence to provide probable cause for a search warrant.

In February the US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] that buccal mouth swabs may be used to extract DNA samples from any adult arrested or charged with a felony in California. In January the Minnesota Supreme Court [official website] upheld a state statute requiring people convicted of crimes to submit a DNA sample, similarly ruling that such a mandate does not violate the Fourth Amendment [JURIST report]. In August a California appellate court struck down the 2004 Amendment [JURIST report] to the DNA Act, overturning a misdemeanor conviction for a felon's refusal to provide a DNA sample after confessing to an arson. US Attorney General Eric Holder [official website] instructed federal prosecutors in November 2010 to use DNA evidence as much as possible [JURIST report] reversing the previous policy of the Bush administration. In May 2009, a California district court upheld the constitutionality of mandatory DNA collection [JURIST report] for all persons arrested or detained under federal authority. That same year a South Carolina law was upheld that requires convicted first degree sex offenders to submit to a DNA test [JURIST report] prior to their release.