DNA Database Trawls and the Definition of a Search in Boroian v. Mueller

CONVICTED offenders have brought dozens of constitutional challenges to statutes establishing DNA databases for law enforcement. Not one has succeeded. In United States v. Weikert, the United States Court of Appeals for the First Circuit rejected a Fourth Amendment challenge from a probationer who objected to providing the government with a sample of his DNA, explaining that

the government’s important interests in monitoring and rehabilitating supervised releasees, solving crimes, and exonerating innocent individuals outweigh Weikert’s privacy interests, given his status as a supervised releasee, the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification.

By “identification,” the court meant trawling through the national database of stored DNA profiles from offenders—now exceeding nine million—for possible matches to any of the hundreds of thousands of DNA profiles of samples found at crime scenes or on victims.

But how long can past offenders constitutionally be subject to this information-gathering practice? Is there no way an offender can escape “lifelong genetic surveillance”? Weikert prominently left open the question of extended retention and trawling of biometric information. The court wrote that it was

withholding judgment on whether retaining a former conditional releasee’s DNA profile in [the national database] passes constitutional muster. The distinction in status between a current and a former offender clearly translates to a change in the privacy interests at stake. A former conditional releasee’s increased expectation of privacy warrants a separate balancing of that privacy interest against the government’s interest in retaining his profile in [the database].

Now, in Boroian v. Mueller, the First Circuit has held that the government can keep a convicted offender’s DNA profile in a law enforcement database even after he has paid his metaphorical debt to society. This outcome is hardly surprising. Long-lasting, collateral consequences of convictions have become pervasive, and continuing to trawl for matches to unsolved crimes after a convicted offender is no longer subject to confinement or supervision adds significantly to the power of DNA databases.

Much more surprising is the doctrinal path that the First Circuit elected to follow. The court repudiated the notion that it needed to reexamine the balance of individual and state interests. Instead, it reasoned that continuing to trawl the database for hits to crime scene DNA profiles did not rise to the level of a search that would be subject to the strictures of the Fourth Amendment. The court’s explanation of this conclusion was rather terse, consisting of but a few sentences. This Essay starts to fill the gap in the opinion. It indicates how the no-search label reflects a settled understanding of the constitutional protection from unreasonable searches and seizures. In this way, it supplies a deeper structure that supports the retention and reuse of DNA profiles beyond the sentencing period.