Lauren Brown*
Abstract
Deoxyribonucleic acid (“DNA”), the “genetic blueprint” for almost all living creatures, recently has become a critical tool for law enforcement in solving crimes. Law enforcement often collects DNA from hair, saliva, or other bodily fluids left on items suspects later discard, such as cigarette butts or water bottles. Law enforcement then uses the “abandoned” DNA to identify perpetrators of crimes. The U.S. Supreme Court has held that the practice of using abandoned DNA does not run afoul of the Fourth Amendment’s protection against unreasonable searches and seizures, relying on California v. Greenwood’s holding that an individual cannot possess a reasonable expectation of privacy in trash. Thus, courts presume that suspects who discard trash in police stations have consented to collection of their DNA.
The U.S. Supreme Court has not, however, examined the Fourth Amendment implications of collecting abandoned DNA from juvenile suspects. Neuroscience research over the last decade indicates that adolescents’ brains do not finish maturing until as late as age 25. Consent to a search must be knowing, intelligent, and voluntary; but during the years of adolescence, the faculties controlling knowledge, intelligence, and voluntariness have not yet fully developed. The adolescent brain’s underdeveloped capacity for future orientation, reward circuitry, impulse control, and executive function make consent to abandoned DNA collection impossible.
This Comment explains how law enforcement collects and uses DNA, particularly abandoned DNA, to solve crimes. A discussion of the Supreme Court’s abandoned DNA jurisprudence regarding collection from adult suspects and a review of the salient differences in the adolescent brain affecting ability to consent will follow. In light of the neurological differences between juveniles and adults, courts should adopt a bright-line rule that juvenile suspects as a class do not have the capacity to consent to the collection of their abandoned DNA.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2021.