INTRODUCTION
Between 1985 and 1988, seven women and one man were killed in Los Angeles, and a ninth victim was raped but survived.1 No useful leads materialized. Thirteen years passed, and the “Grim Sleeper” struck again, committing additional murders between 2002 and 2007.2 Law enforcement was able to develop a DNA profile of the killer from evidence collected at some of the crime scenes, but the profile did not match any known offender profiles already lawfully stored in the state and national databases.3 In 2010, the California Department of Justice conducted a Familial Search of the offender’s DNA profile. This was the second search in this case, and the DNA database had grown by several hundred thousand samples from convicted offenders since the first search eighteen months earlier.4 The second search showed that one offender who met the kinship index cutoff also had a Y chromosome profile that matched the perpetrator.5 This information prompted law enforcement to investigate whether the convicted offender (who was already in the database) had a father, son, or brother who could have committed the unsolved crimes.6 The investigation included an instance where a detective followed the father of the convicted offender, and lawfully collected napkins, a fork, and a partially eaten slice of pizza that he discarded at a restaurant.7 Testing the DNA left on the abandoned items revealed that the convicted offender’s father was a match to the DNA profile developed from the evidence left at the Grim Sleeper’s crime scenes.8 After pursuing this lead further, investigators were able to determine that the offender’s father was in fact responsible for the gruesome murders and rapes.
DNA evidence has been used in criminal investigations for nearly thirty years.9 Though DNA testing has always been of interest to scientists, it was first used in 1987 to prosecute Tommie Lee Andrews, the first American convicted by DNA evidence.10 Since then, DNA testing and analysis have routinely been used in criminal prosecutions, given their ability to individualize the source of forensic evidence.11 When DNA evidence is available, it can be used to identify perpetrators or victims with incredible accuracy.12 DNA can also be used to clear suspects and exonerate persons mistakenly accused or convicted of crimes.13 In all, DNA technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system.14
In the United States, every state and the federal government collects DNA from individuals convicted of certain crimes.15 Forty-eight states require the collection of DNA for any felony conviction, and forty-two states require the collection of samples for at least some misdemeanor convictions.16 To organize and facilitate the use of DNA evidence, law enforcement agencies and governments—at state and national levels—around the world have established DNA databases to store the evidence.17 Once it is collected, database analysts create a genetic profile of the DNA that can be stored electronically, and which law enforcement can compare against a growing bank of DNA samples taken from offenders with DNA picked up at other crime scenes.18 As collections of DNA have expanded, so too have the ways in which DNA is used in criminal investigations.19 Improvements in laboratory equipment and technology paved the way for new methods of processing, storing, testing, and analyzing DNA evidence.20 Furthermore, DNA databanks have only increased in size as scientists became able to extract testable DNA samples from smaller and varied specimens.21
Though it varies by jurisdiction, generally speaking, once an arrestee or convicted person’s DNA profile is entered into a database, the profile will remain in that database unless an event occurs that allows for expungement of the DNA profile.22 The Combined DNA Index System (CODIS) uses the profiles in databases to enable federal, state, and local forensic laboratories to exchange and compare DNA profiles electronically.23 Sometimes law enforcement will not receive a profile match after conducting a routine database search.24 In these cases, subject to the state’s DNA analysis regulations, the database agents may conduct a second search using different software and different search parameters. This may yield a DNA profile that does not exactly match the perpetrator’s DNA profile but shares a “significant portion” of that profile, thus indicating the likelihood of biological relatedness25—giving rise to the name “Familial Search.” Such a computerized search of an unidentified crime scene DNA profile against DNA profiles lawfully stored in a database may yield a collection of leads, which law enforcement officers may investigate further in connection with unsolved violent crimes.26
This Note supports the adoption of Familial DNA Search Policies by states that have not yet taken a position on the issue. Part I of this Note provides background on the role of Familial Searches in criminal investigations. This includes a discussion on the nature of Familial Searches, why they are useful, and the current state of the law. Part I also considers the different guidelines and protections in existing Familial Search Policies, as well as states’ policies regulating their DNA databases. Part II discusses the Fourth Amendment and equal protection concerns implicated by Familial Searches and how a court may address such issues. Part III proposes that states that have not yet taken a position on Familial Searches adopt policies permitting this type of search. However, in crafting these new policies, the Proposal instructs states to comply with a set of minimum requirements, which will mitigate negative effects of the policy that could potentially affect communities of racial minorities in disproportionate amounts.
This Note acknowledges that some states have already decided not to allow Familial Searches.27 Maryland has chosen to prohibit Familial Searching, in part due to the concerns raised later in this Note.28 However, this Note proposes measures that seek to mitigate the negative effects of a Familial Search Policy. If properly drafted and scrupulously monitored, Familial Search Policies have the potential to solve cold cases and exonerate individuals who have been wrongly convicted.29 Thus, we may expect law enforcement in states that have banned Familial Searches to urge lawmakers in their states to adopt such policies in the future.
I. BACKGROUND
A. Familial DNA Searches
In cases where traditional investigative tactics fail to yield a suspect, and where the perpetrator’s DNA is not contained in a recorded profile,30 Familial Searches provide law enforcement with a different way of analyzing genetic evidence that is already lawfully stored in a database.31 To this end, while Familial Searches are not performed at the national level, several states—Arkansas, California, Colorado, Florida, Michigan, Ohio, Texas, Utah, Virginia, Wisconsin, and Wyoming—currently perform these searches at the state level.32
Recently, Ohio conducted its first Familial Search after a ten-year-old girl suffered an abduction attempt from her bedroom window, and after a six-year-old girl was abducted and held for nearly a day, during which period she was sexually assaulted by the perpetrator.33 The Attorney General of Ohio called for the urgent need for a Familial Search, given that traditional investigative methods did not yield any leads, and that the perpetrator was kidnapping young children right from their bedrooms.34 To facilitate the investigation, the Attorney General’s Bureau of Criminal Investigation developed a Familial Search protocol, limited to the most serious unsolved crimes or serial cases with public safety components and cases in which all other leads have been exhausted.35
To regulate the ways in and the circumstances under which Familial Searches are used, some states codified policies that provide guidance to law enforcement and investigative authorities.36 Though the policies vary by state, there are general protective measures that most—if not all—of the states include in their policies. The first of these protective measures is the “case requirement.” Under most policies, only violent cases causing serious injury or death, or cases that present a continuing threat of imminent and serious harm to the community, which remain unsolved after exhausting traditional investigative leads, qualify for Familial Searches.37 For example, assuming other requirements are met, as of October 18, 2017, Familial Search applications may be submitted in New York as long as the DNA profile to be examined is associated with a homicide, violent sexual offense, Class A felony kidnapping, Class A felony arson, or Class A felony terrorism.38 The second protective measure is the “sample requirement.” Most policies require that the forensic unknown DNA profile is a single-source,39 complete profile produced after analyzing the crime scene sample.40 Finally, there must usually be an agreement in writing between the chief law enforcement officer, the director of the state’s forensic science division (or the director of the database to be searched), and the state Attorney General (or the local District Attorney), affirming that the case and sample requirements are met, and that a Familial Search would be appropriate under the circumstances.41 In 2010, Peter Bibring, then a staff attorney for the American Civil Liberties Union, stated that if Familial Searching is to be used, the “Grim Sleeper” case is the kind of case in which it should be used.42
Law enforcement officers may not perform Familial Searches unless they meet the case and sample requirements, as well as any other requirements prescribed in a search policy.43 Nonetheless, Familial Searching raises the question of whether it is fair for someone who has committed no crime to become a virtual suspect because a relative’s DNA is on file.44 To be clear, law enforcement officers may only apply for a Familial Search if the sample in question was collected at the scene of a qualifying crime.45 Furthermore, a kinship match via a Familial Search provides investigators with leads,46 which are then pursued using traditional investigative methods, such as the collection of abandoned samples.47 Familial Searches, when properly conducted, produce a list of likely potential relatives; however, not all of those likely potential relatives will be deemed suspects. For example, further investigation could reveal that one or more of the likely potential relatives were infants when the crime was committed or were out of town. Viable leads produced by the Familial Search are then pursued by traditional investigative methods.48
B. Existing Policy Safeguards
To mitigate the legitimate concerns discussed in Part II, states have incorporated safeguards in their DNA-index statutes and Familial Search policies (to the extent that they are written). First, as an initial matter, a state must establish whether it is going to allow Familial Searches within database samples collected from convicted offenders and arrestees or just from convicted offenders.49 However, some states’ databases include only profiles of convicted offenders. In these states, it would follow that a Familial Search would be limited to the DNA profiles of convicted offenders, unless the Familial Search Policy expressly provides otherwise.50
Some states have permitted law enforcement to conduct Familial Searches on databases created by genealogy services, where individuals voluntarily provide their genetic material in search of relatives and ancestors.51 While these services may notify users via their privacy policies that they may share users’ personal (genetic) information with law enforcement,52 users may not understand the full implications of what they are agreeing to, namely, that they may be exposing near or distant relatives to criminal liability.53 Though states may choose to permit such searches, this Note proposes minimum safeguards in the context of databases created and maintained for law enforcement purposes, such as the convicted offender database, the arrestee database, or the sex offender registry.
Next, states prescribe specific cases that are appropriate for Familial Searches.54 Under most policies, only violent cases causing serious injury or death, or cases that present a continuing threat of imminent and serious harm to the community that remain unsolved after exhausting traditional investigative leads, qualify for Familial Searches.55 In addition to the case requirements, states’ policies include a sample requirement. Most policies require that the forensic unknown DNA profile is a single-source, complete profile produced after analyzing the crime scene sample.56 If the case and sample requirements are met, the law enforcement and investigative agencies involved in the case at issue are required, in most states, to submit a formal request in writing to conduct a Familial Search, affirming that the state’s requirements have been met.57
The National DNA Index System (NDIS) is the national part of CODIS that contains the DNA profiles contributed by federal, state, and local participating forensic laboratories.58 All fifty states participate in NDIS, and as of September 2018, NDIS contains over 13,528,363 offender profiles and 3,280,752 arrestee profiles.59 The DNA Identification Act of 199460 established CODIS for the purpose of assisting law enforcement agencies across the United States by offering a way of catching repeat-offenders.61
The DNA Identification Act of 1994 also lays out the requirements for a state’s participation in NDIS.62 For a state to take advantage of NDIS, the participating state or local database must follow the standards set forth in the “Quality Assurance Standards for Forensic DNA Testing Laboratories.”63 Importantly, the federal guidelines impose on states rigid standards related to the education and training of databank personnel and management, security of the physical databank facility, chain of custody, equipment calibration and maintenance, and reports and case notes.64 If a database fails to comply with the quality control and privacy requirements prescribed by 34 U.S.C. § 12592(b) and the federal Quality Assurance Standards set by the FBI Director, the database’s access to NDIS may be subject to cancellation.65 Not surprisingly, states and databases are greatly incentivized to remain in compliance with the quality control and privacy requirements so that law enforcement agencies may perform their duties unhindered.66 In addition to this incentive, some circuit courts have found that although privacy interests are implicated by blood draws and the creation of a DNA profile in CODIS, the DNA Act offers a substantial deterrent to potential abuse by imposing criminal penalties for misuse of DNA samples.67
A state’s DNA-index statutes and its existing database policies—which exist largely so that the database remains in compliance with the federal standards—will, in many instances, serve as limitations on a Familial Search Policy.68 To remain in compliance with federal standards, some states have codified their own quality assurance programs, designed to ensure the quality, integrity, and accuracy of the entire DNA collection and storing procedure.69 This means that even though Familial Searching is not conducted at the national level (i.e., not conducted through NDIS), a Familial Search conducted at the state or local level is likely to occur at a databank that complies with federal standards. States have also enacted statutes or policies specifically enumerating permitted and forbidden uses of DNA profiles stored in a database.70 Similarly, states have imposed regulations regarding access to the profiles and who may obtain such access—including the convicted offender to whom the DNA profile belongs.71 Finally, states have enacted statutes or policies requiring the expungement, or removal, of a DNA profile from the database if certain conditions are met—for example, if it is determined that the DNA profile is not connected to the criminal offense, or if the conviction has been vacated.72 However, in some states, the onus is on the criminal defendant to submit an application to have his DNA profile expunged from the database.73
II. ANALYSIS
A. Constitutional Questions
Familial Searches, by their nature, have the effect of extending the size and reach of the nation’s DNA databases, effectively including the male grandparents, parents, children, and siblings of the arrestees and convicted offenders whose DNA profiles are already stored in databases.74 To put this into context, Virginia’s DNA database currently holds over 439,000 DNA profiles from convicted offenders and arrestees, contained in two separate indices.75 Assuming all the prescribed requirements are met, Virginia’s Familial DNA Policy allows Familial Searches to be conducted against both the convicted offender and arrestee indices.76 This means that if an offender, X (whose DNA profile is not in the Virginia database), commits a violent offense and leaves his DNA at the crime scene, his genetic profile may nonetheless be findable if X’s brother, Y, was previously arrested and Y’s DNA profile was entered into the database.77 Thus, despite the obvious utility of Familial Searching as an investigative tool, and the safeguards that states have built into their policies, the practice of Familial Searching raises important constitutional questions—specifically in regards to Fourth Amendment and equal protection concerns.
1. Fourth Amendment
The Fourth Amendment guarantees that people will be free from unreasonable searches and seizures by law enforcement officers and government agents.78 The U.S. Supreme Court adopted a reasonable-expectation-of-privacy standard to provide guidance in claims of Fourth Amendment violations.79 The Court eventually adopted the two-part inquiry enumerated in Justice Harlan’s concurring opinion in Katz v. United States,80 in which the inquiry was described as first, has the person exhibited an actual (subjective) expectation of privacy, and, second, is this expectation one that society is prepared to recognize as “reasonable”?81
The collection of DNA from convicted felons is permitted in forty-eight states on the grounds that once a person is convicted of a felony, his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the genetic information.82 Once DNA profiles are stored in a database, law enforcement officers can use those profiles in an analysis of an unidentified sample from a crime scene to identify the crime scene sample, link the crime scene sample to an existing profile, or exclude possible suspects.83 Except in very limited circumstances, because a convicted offender loses his expectation of privacy in his genetic information upon conviction of the qualifying offense, he cannot claim that further testing and analysis of his DNA profile for investigative purposes—including Familial Searches—violates his Fourth Amendment rights.84 Less clear is the argument against a Fourth Amendment claim raised by a family member whose DNA was findable as a result of his relative’s DNA profile in the database.85
The constitutional doctrine of standing86 provides that our constitutional protections are personal in nature.87 In the context of Familial Searches, an individual who suffers the harm of being genetically “found” cannot easily claim that this harm stemmed from a violation of his own rights, as required by the doctrine of constitutional standing.88 This is because it was the lawfully-obtained profile of the individual’s convicted (or arrested) relative that was subjected to additional search and testing,89 not the sample of the individual whose genetic profile was “found.” However, the harm in this scenario affects not the convicted offender (or arrestee), but his relatives, especially if the relative is identified as the perpetrator of the crime being investigated.90 Even though the relative felt the effects of the Familial Search, a lack of standing may prevent him from raising a cognizable claim, as his genetic information was not the subject of the Familial Search.91
Though the constitutionality of Familial Searches has not been addressed by the Supreme Court, the Court has addressed a similar search under a Fourth Amendment analysis. In Skinner v. Railway Labor Executives’ Association,92 the Court affirmed the holding of the Court of Appeals for the Fifth Circuit that the collection and testing of urine constitutes a search, in that it intrudes upon expectations of privacy that society has long recognized as reasonable, as the “chemical analysis of urine, like that of blood, can reveal a host of private medical facts . . . including whether he or she is epileptic, pregnant, or diabetic.”93 However, the Court has also held that the touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate governmental interests.94 Though state and federal DNA-indexing statutes have withstood Fourth Amendment challenges, courts remain divided as to the appropriate test to apply.95 Regardless of whether, in assessing the constitutionality of Familial Searches under a Fourth Amendment analysis, a court applies the special needs test or the totality of the circumstances test, it is unlikely that a court will find that the individual interest at issue in a Familial Search outweighs the interest of society as a whole.96
i. Special Needs Analysis
Under a special needs analysis, a court would consider whether a proposed Familial Search Policy is designed to serve special needs, beyond the normal need for law enforcement.97 The Court in City of Indianapolis v. Edmond further held that pursuing general crime control alone is insufficient to pass constitutional muster under the special needs test.98 With respect to Familial Searching, states with existing policies largely only permit these searches when all other investigative leads have been exhausted.99 Furthermore, Familial Searches are not intended to combat crime in a general sense; rather, they are intended to be used only to aid in the investigations of specific, violent, unsolved crimes—in most cases, homicide and sexual offenses.100 If a state adopts a Familial Search Policy containing the minimum safeguards proposed in this Note, a court could easily find that traditional investigative means have been exhausted, but the need to solve these violent crimes remains. That states’ DNA-indexing statutes have withstood Fourth Amendment challenges under the special needs test. That DNA databases are expanding to include DNA profiles from offenders convicted of lower-level offenses shows the special need for powerful investigative tools—such as Familial Searches—to assist in closing these unsolved, violent crimes, in which the perpetrators have evaded apprehension.
ii. Totality of the Circumstances Analysis
The majority of courts have applied the totality of the circumstances test in reviewing DNA-indexing statutes.101 If a court decided to review a Familial Search Policy under this analysis, the court would evaluate whether a Familial Search is a reasonable search by “assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and, on the other hand, the degree to which it is needed for the promotion of legitimate governmental interests.”102 With respect to the first consideration, it is important to remember that Familial Searches are only used for the most violent offenses, and that the unidentified sample in the Familial Search was abandoned by the perpetrator at the crime scene. Much like how convicted offenders lose their expectation of privacy in their genetic profile once they are convicted,103 so too do perpetrators of unsolved crimes who leave their DNA at a crime scene.104
Against this backdrop, it is unlikely that a court will find Familial Searches unreasonable within the meaning of the Fourth Amendment—under either the special needs analysis or the totality of the circumstances analysis. Instead, it is likely that courts will view these searches as “a carefully calibrated method of using convicted offender DNA samples already lawfully present in the state database to generate, where possible, a strong investigative lead in selected serious but unsolved criminal investigations.”105
2. Equal Protection Questions
According to census data as of July 1, 2018, the estimated population of the United States is 327,167,434.106 Of this, 60.7% of people identify as white,107 13.4% identify as Black or African American, and 18.1% identify as Hispanic or Latino.108 According to FBI data, in 2016, there were 9,374 arrests for murder and non-negligent manslaughter offenses.109 Though Black individuals comprise less than a quarter of the total population of the United States, nearly half of the total arrests were of Black individuals.110 Similarly, the Federal Bureau of Prisons reports that of the 179,917 prisoners in federal custody, 104,981 (58.3%) are white and 68,252 (37.9%) are Black.111
The disproportionate number of incarcerated Black and Hispanic individuals, relative to their percentage of the population as a whole, is reflected within individual states as well. For example, California’s estimated population, as of July 1, 2017, was roughly 39,536,653.112 37.2% of the population identified as white, 6.5% identified as Black or African American, and 39.1% identified as Hispanic or Latino.113 However, of the 129,416 incarcerated people in California in 2016, 27,866 (21.5%) identified as white, 36,887 (28.5%) identified as Black, and 55,756 (43.1%) identified as Hispanic.114 In Texas, the estimated total population in 2016 was 28,240,245—11,729,618 (41.5%) identified as white, 3,230,618 (11.4%) identified as Black, and 11,439,402 (40.5%) identified as Hispanic.115 However, of the 134,547 individuals in state prison in 2016, 42,410 (31%) were white, 45,776 (34%) were Black, and 45,628 (33.9%) were Hispanic.116
Given these statistics, and the fact that states collect DNA samples from all convicted felony offenders, it follows that the number of DNA profiles of Black and Hispanic offenders in the state databanks are disproportionately higher than that of white felony offenders. This consequence is further complicated by the fact that Familial Searches are traditionally only used in investigations related to violent felony offenses, for which people of color are arrested and incarcerated in disproportionately higher numbers than white offenders.117 It is an unfortunate reality “that the American criminal justice system is heavily racialized,” in that “racial disparities have been identified in all parts of the system, from arrest, trial, and access to legal services to conviction, sentencing, parole, execution, and exoneration.”118 Familial Searches are a part of this imperfect system, and until a massive overhaul of the criminal justice system truly changes this reality, it is left to states and law enforcement to ensure that their actions and policies provide equal treatment to the greatest extent possible.
In this landscape, it should not come as a surprise that we must address equal protection concerns in the context of Familial Searches—in particular, that racial minorities may allege disproportionate harm resulting from the use of Familial Searches.119 While the central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race, disproportionate impact alone does not amount to an equal protection violation.120 To support a claim alleging an equal protection violation, the practice or law in question must ultimately be traced to a racially discriminatory purpose, which can be inferred from the totality of the relevant facts.121 However, the Supreme Court has never held that a law or practice, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than another.122
In reviewing a Familial Search policy for an alleged equal protection violation, a court would consider whether the policy at issue was adopted for a particularized discriminatory purpose, or if the policy, equally applied, has a disproportionate impact on racial minorities.123 While racial minorities are more likely to feel the effects of Familial Searches in disproportionately higher numbers, this “effect” would be a reflection of the equal application of the search to all offenders within the database. That is, assuming all other procedural safeguards and requirements are followed, a Familial Search can be conducted against any sample already in the database, regardless of the convicted offender’s race. This is consistent with the Supreme Court’s well-settled rule that “the Fourteenth Amendment guarantees equal laws, not equal results.”124
It would be difficult to make the argument that a Familial Search Policy—when properly drafted and implemented—presents a racially discriminatory purpose, such as an actual intent to prosecute racial minorities in higher numbers than white offenders. Rather, the purpose of a Familial Search Policy would be to use DNA profiles, already in a database, to investigate unsolved crimes, regardless of the race of the perpetrator or convicted offender.125 Considering the entirety of the circumstances, a court could easily find that Familial Searches are an effective tool for an important public purpose, and that the application of Familial Searches is not discriminatory, even if the effects are racialized.
In certain circumstances, a disproportionate effect on Black and Hispanic communities can be viewed in a positive light. DNA testing is routinely used to exonerate people convicted of crimes and to exclude people from a possible list of suspects.126 Familial Searching is no different and allows investigators in some cases to reopen cold cases and exonerate wrongfully convicted individuals.127 For example, in 2003, a newspaper editor was raped and killed in North Carolina, and investigators collected DNA left at the crime scene and compared it to the DNA profiles contained in the state’s database.128 Though the sample did not match any of the 40,000 profiles in the database, the sample was “remarkably similar” to that of a convicted offender named Anthony Brown, whose profile was already in the database.129 This led investigators to consider Brown’s male relatives, namely, his brother Willard.130 Investigators lawfully collected a cigarette butt Willard smoked and discarded, and after an analysis, investigators concluded that the DNA from his cigarette butt matched the sample recovered from the murder of the newspaper editor.131 Willard pleaded guilty in December 2004 to the rape and murder of Deborah Sykes in 1984, for which Darryl Hunt had been wrongly convicted and served eighteen years in prison.132
Darryl Hunt, Willard Brown, and Anthony Brown were Black males, two of whom had their DNA profiles stored in the state database.133 It was Anthony Brown’s crime and his subsequent conviction via a Familial Search yielding his brother’s DNA profile that exonerated Darryl Hunt.134 Cases like this show the full potential of Familial Searches. Although members of Black and Hispanic communities may feel the negative effects of Familial Searches in disproportionate amounts, by the same logic, these communities may also feel the positive benefits in disproportionately higher amounts, in that there are more offenders who can potentially be exonerated by this kind of search. At the other end of the spectrum, we can consider the victims of violent crimes, who are frequently members of racial minorities.135
While this Note proposes a policy specifically for Familial Searches, it is worth reiterating the importance of strict regulations guiding the actions of law enforcement officers and personnel working with physical evidence. Crime laboratories—not just DNA databanks—“serve the criminal justice system as a whole” by working for everyone in the community, “not just the police and prosecutors who request laboratory services.”136 Communities and individuals suffer when crime laboratories fail to closely follow rules that balance a state’s important need to solve crimes against the rights and liberties of individuals. For example, in 2002, the Houston Police Department Crime Laboratory “was among the many crime laboratories around the country plagued with serious issues.”137 In response, Houston city and community leaders implemented a “unique model of crime laboratory governance [melding] the efficiencies of the corporate structure with the public accountability ethos of democratic governance.”138 In the few years since the implementation of the new system, Houston’s crime laboratory has become “a model of excellence” particularly in “(1) reduc[ing] the risk of wrongful convictions . . . [and] (2) provid[ing] timely results [to] better assist police investigations . . . .”139 When procedures and guidelines that account for the human factor inherent in most physical evidence matters are implemented and rigorously enforced, the risk that these procedures will infringe on the rights and liberties of individuals decreases, while retaining the important community utility of these procedures.
A state that has not yet taken a position on Familial Searching must consider all of the policy safeguards that have been implemented by other states, as well as the additional limitations resulting from various federal regulations. The next Part considers all of these factors and proposes a minimum set of safeguards that should exist in a new Familial Search Policy.
III. PROPOSAL
States that have not yet taken a position on Familial Searches should adopt a policy permitting these searches. However, given the legitimate equal protection concerns140 raised by the use of these searches, such a policy should incorporate a minimum set of guidelines, outlined in the model policy and model application.141 In short, these minimum guidelines seek to ensure that Familial Searches are only used in violent, unsolved crimes that present an imminent threat of harm to the community. Most importantly, the proposed policy seeks to prevent law enforcement from exploiting the powerful nature of Familial Searches by requiring an involved application process. Equally important is the proposed “Expungement” section, in that it does not allow law enforcement to capitalize on DNA profiles in a databank that should have been expunged, even if the onus was on the owner of the genetic information to apply to have the profile removed.
Each section of the proposed application and policy attached as appendices exists to ensure that Familial Searches are not used haphazardly or in frivolous cases. Given the serious Fourth Amendment and equal protection implications created by Familial Searches, it is critical that a state’s policy is closely followed. First, it is imperative that states establish in their Familial Search Policies that these searches may not be conducted at the will of law enforcement; rather, these searches must be used in limited cases, where the perpetrator is charged with specific, violent crimes, and in which traditional investigative measures have not produced any leads. The benefit of a Familial Search will be vitiated if law enforcement is permitted to independently select cases for which to conduct a Familial Search. Such unregulated discretion is likely to lead to a negative impact on racial minorities who, for reasons beyond the scope of this Note, disproportionately feel the negative effects of our imperfect criminal justice system.142
Only if law enforcement is presented with such a case may it consider submitting an application for a Familial Search. The application exists to serve as a written record of all parties involved in requesting the Familial Search. Given the privacy concerns related to Familial Searches, it is important to maintain a complete and accurate record of all parties who had access to the information pertaining to the request, and, ultimately, the parties who had access to the DNA profile and results of the Familial Search. The application further ensures that the parties conduct the necessary due diligence and affirm that the initial case and sample requirements have been met before the Search process begins.
In drafting a Familial Search Policy, a state must make the decision whether the convicted offender index will be the only index searched, or if other indices—such as the arrestee index or DNA profiles saved as part of the state’s Sex Offender Registry—will be combed during a Familial Search as well. Of course, states differ with respect to the sources of the DNA profiles in their state databanks—some only create profiles for convicted offenders, while others create profiles for arrestees as well.143 In making this decision, states should consider the fact that courts have generally upheld DNA data banks of convicted offenders on the notion that such individuals have a diminished expectation of privacy, as balanced against society’s need to promote law and order.144 Arrestees do not necessarily hold the same diminished expectation of privacy in their genetic information, and so it may be more likely that an arrestee would prevail on a challenge against a Familial Search on Fourth Amendment grounds, whereas a convicted offender is significantly less likely to prevail on such a challenge.
The Quality Assurance Standards applying to DNA databanks exist because the regulating authorities acknowledge the wealth of personal information contained within the databanks.145 If the databank in which the Familial Search is to be conducted is not in compliance with the applicable state or federal Quality Assurance Standards, there may be room for a violation of an individual’s right to privacy in his genetic information. If states are required to affirm, prior to a Familial Search, that its databanks are in compliance with the prescribed standards, law enforcement agencies that wish to take advantage of Familial Searches will push the regulating state agency to remain in compliance, so that Familial Searching is available as a tool to them. In practice, this incentive will promote the privacy interests of individuals whose DNA profiles are stored in the databanks.
A comprehensive Familial Search Policy must also state, in no uncertain terms, that a Familial Search may only be used for the purpose of providing law enforcement an investigative lead related to the case described in the application for the Familial Search, assuming all of the other requirements have been met. Most states have specifically enumerated permissible and forbidden uses of DNA profiles stored in their databanks,146 and Familial Searches should not be used in any manner inconsistent with these rules. In addition to these permissible and forbidden uses, some states require that a DNA profile always contain enough testable material so that the criminal defendant can conduct tests as part of his defense in a case.147 For this reason, states should add an additional safeguard in their Familial Search Policy, which would require that in the event a Familial Search is permitted, “[t]here must [still remain] enough untested DNA from the crime scene left over to permit additional specialized testing.”148
Familial Searches provide law enforcement with a list of investigative leads, not a list of suspects. Given the personal information that may be uncovered as a result of a Familial Search, a Familial Search Policy should include a provision instructing when and how the results of a Familial Search shall be reported—both to the investigating agency and the subject of the Familial Search.149
Though it may seem self-evident, policymakers should explicitly state in their Familial Search Policies that only results from Familial Searches should be provided to law enforcement in the case at issue. If a Familial Search is permitted under a state’s policy, the results may yield relatives—arrested or convicted, depending on the policy—of the person to be identified.150 On the other hand, while traditional DNA searches look for an exact match to a DNA sample,151 they may also yield a partial match to a sample contained in a database,152 and states vary as to whether they allow partial matches resulting from traditional DNA searches to be included in the results reported to law enforcement.153 An inadvertent partial match resulting from a traditional DNA search may have the same practical effect—for investigation purposes—as the results of a Familial Search, which is a deliberate search of a DNA database using specialized software and search parameters.154 Nonetheless, the adoption of a Familial Search Policy will not automatically mean that law enforcement can use partial matches resulting from traditional DNA searches, especially in jurisdictions where such partial matches are statutorily barred from inclusion in reports to law enforcement. Allowing inadvertent partial matches from traditional searches must be considered separately by the jurisdiction’s lawmakers.
Finally, state databanks should be required—pursuant to state and/or federal law—to expunge DNA profiles from the databanks in certain circumstances, such as when the offender’s conviction has been vacated, or when it has been determined that the DNA profile is not related to the crime for which it was collected.155 While we may wish to trust that states follow the expungement requirements to remain in compliance with the state and federal laws, statutes and procedures related to expungement of DNA profiles vary by state, and, in many cases, DNA profiles are not expunged.156 Applying to have one’s profile expunged from the databank can be a costly and lengthy process, and an individual should not be subject to the far-reaching effects of a Familial Search merely because he cannot afford to apply to have his profile expunged and remain abreast of the status of his application.157 As of 2015, only five states have laws that prohibit the use of a DNA sample that should have been expunged but was not.158 Adopting a Familial Search Policy that allows DNA profiles that should have been expunged to be combed during a Familial Search comes dangerously close to violating the privacy and equal protection rights we hold so dearly. For this reason, in the context of Familial Searches, states should take extra care not to allow the Familial Searches to comb through profiles that should have been expunged from the databank, even if in that state, the onus is on the criminal defendant to submit an application to have his profile expunged.
To reiterate, the Proposed Familial DNA Search Policy provides a suggested minimum set of guidelines. States may choose to add additional procedures or requirements to their own policies. However, the guidelines provided here are the minimum set to ensure that even if the Familial Searches disproportionately impact racial minorities, as long as the searches are conducted within the strictures of these guidelines, they will have been applied equally, thus comporting with the equal protection requirement that the law must not have a discriminatory purpose.159
Opponents of Familial Searching may argue that these searches are presumptively unreasonable, in that the government is using a technological device that is not in general public use to explore private details that would have been unknowable without physical intrusion.160 It is true that, in the case of a Familial Search, law enforcement would be using technology unavailable to the public to test someone’s DNA sample for a possible kinship match in a DNA database. However, the Supreme Court in Kyllo v. United States held that the Fourth Amendment must be construed “in a manner which will conserve public interests as well as the interests and rights of individual citizens.”161
In the case of forensic evidence, the unidentified DNA sample at issue is left by its owner at the scene of a violent felony offense. After a crime scene unit collects the sample left at the scene, investigators are permitted, in any state, to search that DNA against the local, state, and national databases. Familial Searching offers law enforcement a different way of using the lawfully-stored DNA profiles to potentially solve a violent crime. Assuming that a state’s Familial Search Policy contains the minimum safeguards proposed in this Note, such a policy would be consistent with each state’s intent to take advantage of the full investigative potential of their DNA databases, which they have shown by requiring DNA samples from individuals convicted of certain offenses.162 While the government would indeed be using technology that is not publicly available to learn information that would otherwise be private, the DNA sample at issue was abandoned by its owner at the scene of a crime, and courts have never held that lawfully-obtained DNA evidence from a crime scene could not be used to pursue investigative leads. Familial Searching provides law enforcement with those leads so that the unsolved crimes may be investigated further.
Opponents of Familial Searches may also ask how close is close enough when considering the results of Familial Searches and if a true kinship match has been found. To address this concern, it helps to first understand the genetic similarities between relatives. Close or first-degree relatives—a parent or sibling—are expected to share about fifty percent of one another’s DNA variants.163 Second-degree relatives—uncles, aunts, nephews, nieces, grandparents, grandchildren, or half-siblings—share about twenty-five percent of their DNA variations.164 Third-degree relatives—great-grandparents or great-grandchildren—share about twelve percent of their DNA variations.165 Studies have found that the chance of two unrelated people matching at thirteen or more allele sites is small—about 1 in 2,000.166 However, critics may argue that even this small percentage can yield a high number of false leads when combing through a database containing several million DNA profiles.167 The results of a Familial Search may yield a false lead, which can lead investigators to pursue an investigation into an individual who is actually unrelated to the convicted offender. This unrelated individual may then be subject to an improper search, which of course triggers a discussion of a possible constitutional violation.
To resolve this issue, more advanced techniques are being explored. One of these techniques involves the use of “likelihood ratios.”168 Likelihood ratios have been found to make better use of genetic information and produce a prioritized list of partial matches.169 Another method of narrowing long lists of possible relatives of offenders is to subject the stored DNA samples identified in a partial match to additional genetic testing.170 Of course, these methods would require accessing the stored biological samples of individuals in the database and subjecting them to additional genetic tests,171 which may raise a separate inquiry beyond the scope of this Note.
Finally, opponents of Familial Searching may argue that its use will contribute to a 1984-esque society in which individuals are catalogued—here, based on their genetic profile. Opponents might ask, what measures, if any, are in place to prevent law enforcement officers from collecting genetic samples at birth, or following around individuals to collect abandoned DNA samples to bolster a DNA database? These are valid concerns. The collection and testing of abandoned DNA samples are allowed in most states.172 Thus, should individuals bear the burden of removing all traces of genetic material from their trash so that law enforcement cannot access it? It seems obvious that the threat of over-policing has always been present—abandoned DNA samples could be collected by law enforcement even before Familial Searching was used. Furthermore, the Proposal in this Note does not make this threat any worse, assuming that the prescribed precautions and limitations are followed. In fact, if properly implemented, this Proposal should have the effect of providing law enforcement agencies with a useful tool, but one that is very limited in its use, given the case and sample requirements, and the affirmations that must be made prior to conducting a search.
CONCLUSION
Familial DNA Searches are a powerful tool available in criminal investigations. These searches have the potential to assist investigators in pursuing leads in cold cases where perpetrators have evaded law enforcement, sometimes for many years.173 These searches can also exonerate individuals who were wrongly convicted of past crimes.174 However, if left unregulated, it is likely that Familial Searching will devolve into yet another investigative technique that unfairly discriminates against racial minorities, who are subject to such discrimination in nearly every other area of our criminal justice system.175
The safeguards proposed in this Note for Familial Search Policies are a minimum set of requirements that any new policy should incorporate in order to protect against equal protection violations that are likely to arise in an unregulated Familial Search system. Because of larger issues relating to disproportionate numbers of genetic profiles belonging to individuals of color, these individuals are bound to feel the effects of Familial Searching—both negative and positive—in disproportionately higher numbers than their white counterparts.176 However, the Supreme Court has consistently held that a discriminatory impact alone is insufficient to support a claim under the Equal Protection Clause. Rather, a petitioner must show that the Policy was made with a discriminatory purpose.177 In the context of Familial Searches, so long as the minimum proposed safeguards are followed in a state’s policy, equal application of Familial Searches will be ensured, even if equal results cannot be ensured.