Sunday, February 17, 2013
Orin Kerr has this post at The Volokh Conspiracy. In part:
I think it may be analytically helpful to the Court to break down the “search” question into two stages. First, there’s the buccal swab. But second, there’s the analysis of the sample. Under Skinner v. Railway Labor Executives Association, 489 U.S. 602, 616 (1989), analyzing the sample to obtain the DNA profile is a second search: It reveals information about the DNA not otherwise visible, searching it much like opening a closed container. (At the same time, entering the profile into the DNA database and obtaining the match would not be a search. The data contained in the profile was disclosed to the police as the fruit of the search, and once the police have the data in their possession they can enter it into a database and manipulate it without further limits from the Fourth Amendment.) So the legality of the government’s conduct boils down to the reasonableness of two searches: The buccal swab, and the creation of the DNA testing.