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I. INTRODUCTION
A new Deoxyribonucleic Acid (“DNA”) analysis tool has gained popularity among law enforcement agencies: familial DNA searching. 1 Unlike typical DNA testing, familial DNA searching compares areas of hereditary sections of DNA — genetic markers that are passed down through family lines. As a result, familial DNA searching allows law enforcement agencies to take unknown DNA from crime scenes and find potential family members by looking for hereditary markers. Recently, familial DNA has been in the spotlight because investigators in California successfully used familial DNA searching to solve the Golden State Killer cold case. 2 Familial DNA searching is a relatively new investigative tool, therefore state and federal courts have not ruled on its constitutionality. However, based upon the current Fourth Amendment precedents, the Supreme Court is likely to find that familial DNA searching is constitutional.
DNA testing has significantly improved since its introduction in the mid-1980s. 3 Technology that was once only available in the most advanced laboratories is now readily available to the public. 4 For example, companies like 23andMe and Ancestry.com market and sell DNA tests to the public at large; all a person has to do is buy a kit for $99, spit into a tube, and send their sample to a lab. 5 After analyzing the DNA, the company generates a report telling the individual the ancestral origins of their DNA, breaking it down to small percentages. 6 These companies send the results to the individual through an internet database, and the company maintains the record of the individual's DNA test results unless otherwise asked. 7 Due to the usefulness of DNA databases, law enforcement agencies want to be able to access the information to help solve violent crimes. 8
This paper will argue that familial DNA analysis is constitutional under the Fourth Amendment because the analysis does not invade a defendant's legitimate expectation of privacy, and because a defendant does not have standing to contest the familial DNA search. This paper will start by discussing the science and procedures behind DNA testing, the privacy concerns and implications of its use, and the current state regulations concerning familial DNA analysis. Next, this paper will discuss the Supreme Court's 2013 decision in Maryland v. King and recent Fourth.
