This Article concerns individuals who were neither arrested nor convicted, but who voluntarily gave the state their DNA (“Suspect DNA”).[1] Currently, several states in the United States store Suspect DNA in a database, alongside the DNA of criminals.[2] One of these states, the focus of this article, is North Carolina.[3] While North Carolina participates in storing Suspect DNA, the North Carolina Legislature never granted the Crime Lab the right to store Suspect DNA.[4] The lack of authority to store Suspect DNA makes the storage legally ambiguous.

The taking of DNA is considered a search under the protection of the fourth amendment.[5] In Maryland v. King, the Supreme Court limits the use of DNA to identify criminals.[6] The suspects did not commit a crime with Suspect DNA but consented to give the police the DNA sample. Consent to search is one way that police may search without a warrant.[7] However, suspects must “knowingly, willfully and understandingly consent[] to the search.”[8] Knowingly means that the suspect “knew what he was about to do,” and still decided to take the action.[9] Additionally, knowingly requires the suspect to act with intent and “not because of ignorance, mistake, accident, or carelessness.”[10] Understanding is the ability to comprehend the meaning of a thing.[11] Finally, willfully means “voluntary and intentional.”[12]

I. DNA (Deoxyribonucleic Acid) Was Discovered in The 1800s

DNA is found in the nucleus of human cells and is made of “chemical building blocks nucleotides.” There are four nitrogen bases to the nucleotides: “adenine (A), thymine (T), guanine (G)[,] and cytosine (C).”[13] The order in which the nitrogen bases occur controls a person’s genetic and physical features. “For example, the sequence ATCGTT might instruct for blue eyes, while ATCGCT might instruct for brown.”[14] During sexual reproduction, the child inherits half of their DNA from their mother and half from their father.[15] The inheritance of half from each parent allows scientists to determine the paternity of a given person. Additionally, an area in the code, called “Junk DNA,”[16] creates an individualized fingerprint that allows scientists to tell one person’s DNA from another.[17]

A. DNA Was First Used as an Investigation Tool in the United Kingdom

In the mid-1980s, Sir Alec Jeffreys pioneered the process of DNA identification. While researching genetic differences in humans, Sir Alec ran an experiment that compared the myoglobin gene of seals and humans.[18] During the experiment, he identified a homologous genetic sequence. After further study, Sir Alec created a radioactive probe that latched on to the repeating sequence, which revealed a pattern that was unique to the individual, a DNA “fingerprint.”[19] Sir Alec used the unique pattern to identify specific people and show familial relations. DNA fingerprinting was first used during an immigration case in the United Kingdom, but by the end of 1986, countries around the world used DNA fingerprinting.[20]

A few years after the discovery of DNA fingerprinting, the FBI founded a DNA laboratory known as CODIS.[21] Shortly after the foundation of CODIS, Congress passed the DNA Identification Act of 1994, creating the National DNA Index System (NDIS). NDIS served as the national DNA database.[22] A year before the creation of NDIS, North Carolina passed the DNA Database and Databank Act of 1993, creating a state DNA Database.[23]

Since the foundation of the North Carolina DNA Database, the Crime Lab has cataloged more than 390,000 DNA profiles.[24] The Database contains DNA profiles of arrestees, convicts, suspects, forensic evidence, missing persons, relatives of missing persons, and unidentified human remains.[25] The DNA Database has returned over 7,400 hits since its foundation in 1993.[26] In the last decade, the Database has returned 5,391 hits.[27] However, out of the 432 hits from 2017 to 2018, only 203 resulted in an arrest or conviction.[28] Thus, only 46.9% of the time did a hit result in an arrest or conviction.[29]

When the General Assembly founded the DNA database, they set specific parameters allowing the North Carolina Crime Lab to store the DNA of convicts of certain crimes. In 2010, N.C. Gen. Stat. § 15A-266.3A (2021), allowed law enforcement to collect DNA from arrestees for crimes listed in sections (f)and (g).[30] Additionally, the General Assembly specified that the DNA Database should only contain DNA from arrestees and convicts.[31] In the same legislation, the General Assembly created a list of crimes for which the Crime Lab can store the convict’s DNA.[32]

Upon founding the Database, the General Assembly allowed the expungement of non-convicted people’s DNA to ensure that only convicts remained in the Database. Before 2012, the arrestee was responsible for beginning the expungement process.[33] However, for arrests after 2012, the Legislature placed the burden of the expungement process on the State.[34] This change has caused additional issues as the State often fails to complete the process of expunging the DNA.[35]

B. How the Crime Lab Deals with DNA Hits

The police take a cheek swab from the arrestee or convict and send the sample to the Crime Lab for analysis and storage.[36] According to the statute, the Crime Lab is only allowed to retain one DNA sample from a person.[37] In the case of duplicate samples, the Crime Lab will remove the additional sample.[38]

When police collect a biological sample from a crime scene, they send the sample to the Crime Lab.[39] The Crime Lab tests the sample against the currently stored DNA samples.[40] The sample must meet a majority of the twenty-three indicators for the Crime Lab to report a match.[41] The prosecution cannot use the cold hit in court.[42] However, a cold hit gives the State probable cause to gain a warrant for a new DNA swab.[43] Once the police gather the warrant sample, the Crime Lab will compare the new sample to the crime scene sample.[44] If the new match returns a hit, then the State can use the new hit in court. The Crime Lab cannot report on hits to samples it is not allowed to have.[45]

II. Cases Across The Us Have Involved DNA Samples Used For Other Purposes Than Originally Indicated[46]

Courts across the country have ruled on the issue of using DNA samples.[47] In many cases, the State had a warrant; however, in some, the suspect consented to give the police their DNA. In both situations, the courts have given states carte blanche to use the DNA in cases other than the investigation for which the police collected the sample. However, no court has granted a Crime Lab the authority to store the DNA in a database.[48]

A. Since the Foundation of a DNA Database, whose DNA has been placed in the Database has grown

The two countries with the largest DNA databases are the United States and Great Britain.[49] Great Britain stored more than 10% of its population’s DNA until the court stopped some of the collection.[50] The United States has the largest DNA database, with over twenty million[51] profiles of people “suspected of or convicted of crimes” stored in CODIS.[52] In the last nine years, CODIS has nearly doubled.[53]

The U.S. Supreme Court instigated the increase in CODIS and state DNA Databases in Maryland v. King.[54] “In 2009 Alonzo King” (“King”), was arrested for, but not convicted of, assault.[55] The Police collected King’s DNA and compared it to the DNA Database.[56] This search returned a match to DNA taken during an unsolved 2003 rape investigation.[57] Subsequently, King was charged and convicted of the 2003 rape. King appealed, stating that the police did not have the authority to take his DNA until he was convicted.[58]

The Supreme Court, in a five to four decision, disagreed with King and recognized the constitutionality of collecting DNA at booking.[59] However, the Court compared collecting DNA to fingerprinting arrestees to justify upholding King’s conviction.[60] The reason behind the decision is that collecting DNA from arrested violent felons could help to solve future crimes, as violent felons are more likely to re-offend.[61]

Justice Scalia, in dissent, stated that King expanded the government’s power and decreased the right to privacy.[62] He went on, stating that the decision creates the ability for open warrants.[63] Open warrants are “‘general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed,’ or to search a person ‘whose offence is not particularly described and supported by evidence,’ ‘are grievous and oppressive, and ought not to be granted.’”[64] Thus, permitting the police to take arrestees’ DNA allows them to investigate not only the crime at hand, but all potential crimes without even the probable cause required for a warrant.

While collecting arrestees’ DNA does help solve crimes, it gives the police an open warrant for the arrestees’ past.[65] This article does not concern arrestees, but those whom the police do not even have probable cause to arrest: suspects.

B. North Carolina and Other States have Allowed the State to Use DNA Samples in Other Cases[66]

State v. Barkley was a 2001 North Carolina Court of Appeals case.[67] The defendant voluntarily gave the police a DNA sample to prove his innocence in a murder investigation.[68] Then, the police tested the DNA against evidence of an unrelated rape case.[69] There are two pertinent issues in this case. First, the police arrested the defendant on suspicion of murder, granting the police the right to take his DNA.[70] Second, the Court stated that the defendant had no right to privacy after the State lawfully extracted his DNA.[71]

Unlike Barkley, most of the profiles in the suspect database belong to law-abiding citizens.[72] Only a small percentage of the people in the suspect database have come up as a hit in any investigation. Additionally, both the Ninth and Seventh Circuits have indicated that crime labs should delineate between taking criminals’ DNA and law-abiding citizens’ DNA.[73] The Ninth Circuit indicated that the state should not use a DNA database function as an Orwellian security apparatus,[74] housing the information of all citizens.[75] Finally, the European Court of Human Rights held that if a state retained the DNA of a suspect that was not tried or convicted of a crime, the suspect’s human rights were violated.[76] Currently, North Carolina puts the DNA of law-abiding citizens in the same database as arrestees and convicts. Thus, North Carolina has overstepped the mark by treating people who have never committed a crime as criminals.

In 2007, Virginia’s Court of Appeals allowed the police to use a DNA sample as evidence in one case and compared it to samples in another case.[77] The defendant voluntarily gave his DNA in 2001 during an investigation for breaking and entering.[78] However, the police compared the Defendant’s DNA to a 1999 unsolved rape in addition to the breaking and entering.[79] While the court allowed the Crime Lab to test the DNA against other crimes, the court did not allow the Crime Lab to store the DNA. Va. Code Ann. § 19.2-310.7 states that the Crime Lab must destroy DNA samples if the defendants were not convicted of a crime listed in “9.1-903, 16.1-299.1, 19.2-310.2, or 19.2-310.2:1.” Although the Court of Appeals allowed the use of the DNA, it did not permit the storage of the DNA in a Database.

While courts have given the State the power to test DNA against other crimes, they have not granted any authority to store the DNA. The Legislature intended to store criminal DNA only, but the Crime Lab overstepped its bounds. The DNA storage of law-abiding citizens’ DNA resembles an Orwellian tracking system.

C. In Cases Dealing with Unauthorized DNA Usage, the States Justified Their Action Through The “Good Faith Exception”

Only a few cases from around the country have ruled on the topic of a suspect database.[80] In most cases, the state had the authority to take the DNA without the suspect’s consent. However, when the state lacked the authority to take the suspect’s DNA, the state relied upon the “Good Faith Exception” to allow the DNA into evidence.

In United States v. Davis, the Fourth Circuit applied the “Good Faith Exception.”[81] In Davis, the defendant objected to DNA evidence unlawfully kept by the police.[82] The case began after Davis went to the hospital for a gunshot wound.[83] The police took Davis’s clothes as evidence of the shooting.[84] During the investigation, the police found drugs in Davis’s car and arrested him.[85] The State dropped the charges against Davis and never found his shooter.[86] However, the police retained Davis’s clothes and used the DNA on the clothes in another investigation. Under these circumstances, the State lacked the authority to use Davis’s DNA.[87]

The Fourth Circuit recognized that the State lacked the authority to retain Davis’s DNA.[88] However, the Court overcame the lack of authorization by applying the “Good Faith Exception.”[89] The Court indicated that the police and Crime Lab acted in Good Faith by retaining Davis’s DNA, believing the clothes were evidence of the drug charges.[90] The Court applied a balancing test between the legislative intent of the Database and Davis’s right to privacy.[91] First, they stated that the legislative intent of the DNA database was to help solve crimes.[92] Second, the Court noted that Davis failed to request the return of the clothes after the police took them.[93] Finally, the Court determined that the police lawfully acquired Davis’s clothes and DNA.[94] The Court held that while the State lacked the authority to keep Davis’s DNA, the police acted in good faith.[95] Therefore, the trial court acted appropriately by allowing the use of Davis’s DNA in the trial.[96]

The police lawfully collected the suspects’ DNA in the question at hand. However, the Legislature has established that the Crime Lab could only store the DNA of persons arrested or convicted of one of the crimes listed in § 15A-266.3A. Therefore, while police legally collected the DNA, the Crime Lab lacked the authority to store the DNA profile in the Database.

Unlike in Davis, North Carolina courts have applied the “Good Faith Exception” narrowly.[97] The current understanding of North Carolina’s “Good Faith Exception” applies to searches reliant on invalid warrants or statutes.[98] In the case of the Suspect Database, the police failed to gain a warrant for the suspects’ DNA, as the suspect voluntarily gave the police their DNA. Additionally, none of North Carolina’s statutes grant the Crime Lab the authority to store suspect DNA.[99] Therefore, North Carolina cannot rely on the “Good-Faith Exception” to authorize a suspect DNA database.

Even if the Court felt that the “Good-Faith Exception” applied in the situation, North Carolina’s suspect database would not stand up to the balancing test applied in Davis.[100] The Fourth Circuit focused on the fact that Davis could have expunged his DNA profile.[101] However, the suspects in the Suspect Database lack a legal mechanism to expunge their DNA, and many fail to realize that the State has stored their DNA in a database.[102] Without this mechanism, North Carolina could not pass the balancing test laid out in Davis.[103] Therefore, even with a “Good-Faith Exception,” North Carolina would need to adopt an expungement process.

North Carolina lacks the legislative authority to have a Suspect DNA Database.[104] The NDIS Procedural Manual accepts the existence of the Suspect DNA Database in certain states. However, NDIS will not consider or allow the use of DNA taken only from Suspects (not from convicts, arrests, or crime scenes). The only exception to the rule occurs when the state has granted the State Crime Lab the authority to store Suspect DNA.[105]

Currently, the North Carolina Legislature has not granted the Crime Lab the authority to store Suspect DNA. Sections 15A-266.2 and 15A-266.3A state that the DNA Database should contain the DNA of arrestees and convicted offenders of crimes listed in 15A-266.3A (f) and (g). “‘Arrestee’ means any person arrested for an offense in G.S. 15A-266.3A(f) or (g).”[106] Additionally, “‘Conviction’ includes a conviction by a jury or a court, a guilty plea, a plea of nolo contendere, or a finding of not guilty by reason of insanity or mental disease or defect.”[107] Finally, § 15A-266.3A and § 15A-148 state that the Crime Lab must expunge the DNA of a person whom the State fails to convict or if the court overturns the conviction.

A. The North Carolina Legislature has Not Granted the Crime Lab the Authority to Store Suspect DNA

The DNA database statutes are silent on a suspect database; thus, one must examine the legislative intent. The statutes are clear that only those convicted of certain crimes must have their DNA in the Database.[108] When evaluating a statute that clearly enumerates what is allowed, one considers that the legislature excluded those things unenumerated by the statute.[109] Thus, silence on the issue of a Suspect Database denotes that the Crime Lab lacks the authority to store suspect DNA.

When deciding what a law means, courts look at legislative intent.[110] First, one determines the legislature’s intent by considering “the plain language of the statute, . . . the legislative history, the spirit of the act[,] and what the act seeks to accomplish.”[111] Additionally, one considers the words of the statute as a whole.[112] Finally, “[i]t is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law.”[113]

There were only two places where the legislature may have referred to suspect DNA. First, § 15A-266.3A(h) discusses the instances for which the Crime Lab can expunge a person’s DNA. Subsection 1(d) states that the Crime Lab must expunge a person’s DNA when the State fails to file charges against a person.[114] This definition may apply to suspects as their DNA exonerates them from the accused crime. However, the beginning of the subsection explicitly states that the list is a subcategory of arrestees.[115] Therefore, the legislature did not intend this section to govern suspect DNA, as the State never arrested those in the Suspect Database.

Second, § 15A-268 describes the process of preserving biological material. Section A defines biological material as anything used to incriminate or exculpate any person in a criminal investigation.[116] Under an expansive understanding, one could infer that this section would cover suspect DNA as the DNA exculpates the suspect from the suspected crime.[117] However, this section indicates a difference between preserved evidence and DNA.[118] It states that the collecting agency should retrieve DNA when destroying or returning preserved evidence.[119] Thus, this subsection demonstrates that the legislative intent does not cover DNA when it speaks of preserved evidence.[120]

Even under the most expansive understanding of this section, the Crime Lab would only have the authority to keep the DNA.[121] Under the database statutes, preservation means keeping the objects, while the word store refers to categorizing searches.[122] Therefore, § 15A-268 does not go as far as to allow the State to store the DNA in the Database.

B. The Legislature allows the Expungement of the DNA of Arrestees and Convicts

In 1993, the legislature created a process that granted a person the right to have their DNA expunged.[123] Expungement allows those not convicted to have their DNA removed from the system and the sample destroyed. Over the years, the legislature expanded the right to expunge to a larger group of people.[124] The current expungement statutes allow people not convicted or whose convictions have been overturned the right to expunge their DNA from the Database.[125] Initially, those who were not convicted had to file paperwork to have their DNA removed. However, starting June 1, 2012, the legislature shifted the burden to the State.[126] Under this new system, the prosecuting district attorney has 30 days to file forms with the State Crime Lab to expunge the DNA.[127] Following the expungement form, the Crime Lab has 90 days to determine if the expungement is appropriate and notify the defendant of the expungement.[128] Additionally, the defendant may file for the court to review the decision not to expunge, and if the State fails to expunge in the required time, then the State cannot use any match against the defendant.[129]

1. The Legislature Requires the Crime Lab to Remove the Suspect’s DNA

The State Legislature intended that the Crime Lab only store DNA samples that the Legislature expressly granted the Crime Lab the authority to store.[130] The North Carolina Supreme Court determines the legislature’s intent by considering “the plain language of the statute, then from the legislative history, the spirit of the act[,] and what the act seeks to accomplish.” [131] Additionally, “[i]t is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law.”[132] § 15A-266.3A(h)(2) states the Crime Lab must remove DNA samples not “required to be in the State DNA Database under some other provision of law, or is not required to be in the State DNA Database based upon an offense from a different transaction or occurrence from the one which was the basis for the person’s arrest.”

Under § 15A-266.3A(h)(2), the Crime Lab must expunge DNA if no specific statute requires the Crime Lab to store the DNA. However, none of the statutes expressly grant the Crime Lab the authority to store Suspect DNA. Thus, the Crime Lab must remove the DNA from the DNA Database.

2. A Person has a Proprietary Right to their DNA if they are not Convicted

A person whose DNA was lawfully collected loses their privacy interest in the DNA.[133] Generally, under property law, a person loses all property rights to bodily fluids after the fluids leave the person’s body.[134] However, in Moore v. Regents of the University of California, the court specifically stated there might be a situation in which a person could retain their rights to the cells.[135] Property rights are compared to a bundle of sticks, as there are many parts that the owner can dispose of and keep.[136] One of the rights in the bundle of sticks is the right to destroy.[137] Finally, a person may still have a right to something, even if there is no inherent right to the thing, if the legislature grants the person the right by statute.[138]

§ 15A-266.3A states explicitly that the Crime Lab must destroy the DNA of a person not convicted of one of the crimes listed in the statute. Even though the DNA sample had left the body of the defendant, the legislature enumerated a right to the destruction of the DNA and gave the defendant the ability to enforce the right against the State.[139] The right to destroy is a property right; therefore, one who has the right to destroy property has some right to the property.[140] In this situation, those not convicted have the right to destroy their DNA, so they have some property rights over their DNA even though the DNA is in the custody of the Crime Lab.[141] In the case of people in the Suspect Database, they were never convicted of any crime.[142]

When a suspect consented to give their DNA, they inherently lost their right to determine what happened to the DNA.[143] However, the State Legislature extended the right to destroy the DNA of those not convicted.[144] The State had not convicted the suspects of any crime; thus, § 15A-266.3A grants suspects the right to destroy the DNA they gave to the police.

3. The Storage of Suspect DNA Violates Equal Protection

Currently, there is not a system for expunging Suspect DNA. Without a system for expunging suspect DNA, the State deprives law-abiding citizens of the right to remove themselves from the DNA Database, which is a right enjoyed by arrestees and convicts. The current DNA Database laws set out a specific process for expunging one’s DNA.[145] If the State failed to convict the defendant or the court overturned the conviction, then the DNA is expunged.[146] However, since the Database laws fail to mention suspect DNA, the laws neglect to set out an expungement process for suspect DNA.[147] Under the “Law of the Land” clause, no person may be denied equal protection under the law.[148] Thus, these laws set up a mechanism protecting one group from governmental tracking while failing to protect a group of law-abiding citizens. Therefore, the lack of a suspect expungement process violates the equal protection clause.[149]

Storing the DNA of law-abiding citizens without an expungement process creates an inequity in the law.[150] Additionally, it creates a possibility of causing a slippery slope ending in the State’s surveillance of all its citizens. Therefore, the continued existence of a Suspect Database violates the idea of equal protection.

IV. There Are Four Courses of Action Available To The State Crime Lab

As established above, no statute grants the Crime Lab the authority to store suspect DNA. Thus, the State must take action to correct this issue.

A. The Crime Lab can Keep the Suspect Database and Continue Collecting Future DNA Samples of Suspects

There is no legal authority for the suspect DNA database. Therefore, if the Crime Lab keeps the Suspect Database, it will need to act.

First, the General Assembly would need to grant the State Crime Lab the authority to store suspect DNA. The granting of authority would allow the Crime Lab to submit suspect DNA profiles to CODIS. If the legislature fails to pass such legislation, North Carolina will need a more expansive “Good Faith Exception.”[151] In other States, the “Good Faith Exception” applies to law enforcement officers acting with a good-faith belief that they have the authority to keep a person’s DNA.[152] These states consider “Good Faith” to mean that the officer did not knowingly, negligently, or recklessly violate the defendant’s rights.[153] In North Carolina, the Good-Faith exception only applies when an officer relies on a judicial ruling or a misinterpreted statute.[154] The State lacks a judicial order to rely on as the State gains suspect DNA when a suspect voluntarily gives their DNA. Additionally, North Carolina lacks a statute on the suspect DNA. Therefore, North Carolina must expand its “Good Faith Exception.”

Second, the Crime Lab must create an expungement process. In State v. Womble, Womble’s DNA was not supposed to be in the DNA database; however, it was the defendant’s responsibility to expunge his DNA.[155] The Court held that since the defendant failed to request expungement of his DNA, he cannot argue that storage of his DNA violated his rights.[156] The legislature has not granted the authority to keep suspect DNA nor set up an expungement process for suspects.[157] If a court were to apply the reasoning in Womble to a case where the State convicted a person on suspect DNA, the Court would overturn the conviction.[158] Additionally, the State would need an expungement process to apply the “Good Faith Exception” balancing test in Davis.[159] Therefore, North Carolina must establish an expungement process for suspect DNA.

Currently, the expungement system for arrestees and convicts puts the burden of expungement on the State.[160] The statutes require the State to expunge the DNA of persons not convicted or whose conviction was overturned.[161] If the Crime Lab applied this system to the Suspect Database, it would expunge the entire database. However, the prior expungement system required the defendant to request the expungement.[162] Under this system, the police gave the arrestees or convicts a form that explained the expungement process.[163] If the Crime Lab adopted the same expungement process, it would have to inform everyone in the Suspect Database of their inclusion.[164] Informing the owners of the DNA profiles will raise questions about why the State stores law-abiding citizens’ DNA.

North Carolina will have to make changes if it retains the Suspect Database.[165] Adding legal authority for the Suspect Database and expungement process will require legislative action. Additionally, the State judiciary would need to recognize an expanded “Good Faith Exception.”[166]

B. The Crime Lab can Keep the Suspect Database and Stop Collecting Suspect DNA

Under this opposition, the State will still lack the authority to retain suspect DNA in a database. Therefore, the State would have to adopt an expanded “Good Faith Exception” and create an expungement process.[167]

Additionally, discontinuing collection will decrease the suspect database’s benefit to criminal investigations. This choice will not make the database useless, as the Suspect Database will still contain profiles. However, the discontinuation will prevent any possibility that non-arrested perpetrators will have their DNA run against open cases. Over the following decades, this action will make the Suspect Database useless as those in the database die or have their DNA expunged.

Discontinuing the collection of suspect DNA will create the same outcome as purging the Suspect Database but over a larger expanse of time. Additionally, this choice retains the same legal issues as making no changes to the Suspect Database.

C. The Crime Lab can Purge the Suspect Database and Stop Collecting Suspect DNA

This option has advantages over the previous two options. First, the State would not have to take any action to authorize the Suspect Database. Additionally, the Crime Lab would not have to institute an expungement process. However, there are two disadvantages to purging the Suspect DNA database.

First, purging the system will eliminate any benefit from the Suspect Database to criminal investigations. The Suspect Database has only assisted law enforcement with a few hits compared to the thousands of hits returned by the larger database. Therefore, the North Carolina criminal justice system would see minimal effects on its investigative ability.

Second, the process of deleting each profile will take little time or effort. However, the Crime Lab policy requires a case report for each expungement. In this report, the Crime Lab must enumerate the reasons for expungement. This requirement means the Crime Lab would need to prepare reports to expunge the suspect database. The process would require the Crime Lab to take a great deal of time to finish all the reports.

Purging the suspect database decreases the legal issues. However, purging the database creates a large amount of work for the Crime Lab. Purging the suspect database decreases the legal issues; however, purging the database will create a large amount of work for the Crime Lab.

D. The Crime Lab could Disable the Searchability of the Suspect Database and Stop Collecting any Further Suspect DNA

Turning off the ability for the Crime Lab to search the Suspect Database would prevent any further hits. This choice would also eliminate the legal issues of expungement and the authority to have a suspect database. Additionally, the Crime Lab would not have to file reports to expunge all the profiles.

The fact that the Crime Lab would still have access to the profiles is the main issue with this choice. While one could not readily search the Suspect Database, certain people could still access the profiles. The Crime Lab lacks the ability to lock the profiles completely. Currently, only qualified analysts have access to the Suspect Database. A person who wanted to search the Suspect Database would need to access the database, look up the case number, and query that specific profile. Thus, a person searching for a match in the Suspect Database would need to test the evidence against each profile one by one. Additionally, the system would create a record of any activity involving the Suspect Database. Therefore, the Crime Lab would have a way to see if anyone looked at the profiles.

This choice would require an order stating that law enforcement cannot use the information in the Suspect Database. This way, the Crime Lab will know not to engage with the suspect database. Additionally, this choice creates the least complicated process for the Crime Lab.

CONCLUSION

The State Crime Lab lacks the authority to store suspect DNA under the DNA Database statutes. Without this authority, the legality of the Suspect Database is in question. Furthermore, North Carolina’s lack of a Good Faith Exception makes it less likely that the judiciary will endorse the Suspect Database. Therefore, the State must take action to address the issues with the Suspect Database.

  1. This Article will refer to this individual’s DNA as Suspect DNA.

  2. Neha Thirani Bagri, Local US police departments are creating their own DNA databases of unsuspecting (and innocent) citizens, Quartz (Sept. 29, 2016), https://qz.com/780895/local-us-police-departments-are-creating-their-own-dna-databases-of-unsuspecting-and-innocent-citizens.

  3. Id.

  4. See generally N.C. Gen. Stat. §§ 15A-266 — 15A-270.1.

  5. Maryland v. King, 569 U.S. 435, 446 (2013).

  6. Id. at 465.

  7. N.C. Gen. Stat. § 15A-221.

  8. State v. McCants, 854 S.E.2d 415, 437 (N.C. Ct. App. 2020).

  9. State v. Aguilar-Ocampo, 724 S.E.2d 117, 125 (N.C. Ct. App. 2012).

  10. Id. at 124.

  11. State v. Clontz, 286 S.E.2d 793, 794-95 (N.C. 1982).

  12. Willful, Black’s Law Dictionary (11th ed. 2019).

  13. Deoxyribonucleic Acid (DNA) Fact Sheet, Nat’l Hum. Genome Res. Inst. (last viewed Nov. 19, 2021), https://www.genome.gov/about-genomics/fact-sheets/Deoxyribonucleic-Acid-Fact-Sheet.

  14. Deoxyribonucleic Acid (DNA) Fact Sheet supra note 14.

  15. Deoxyribonucleic Acid (DNA) Fact Sheet, supra note 14.

  16. Robert Sanders, So-called junk DNA plays critical role in mammalian development, Berkeley Res. (Oct. 18, 2021), https://vcresearch.berkeley.edu/news/so-called-junk-dna-plays-critical-role-mammalian-development,(“Nearly half of our DNA has been written off as junk, the discards of evolution: sidelined or broken genes, viruses that got stuck in our genome and were dismembered or silenced, none of it relevant to the human organism or human evolution”).

  17. Anip Patel, The Constitutionality of DNA Sampling of Arrestees, 13 PGH. J. TECH. L. & POL’Y 1 (2012), file:///C:/Users/ASL/Downloads/admin,+Patel±+The+Constitutionality+of+DNA+Sampling+of+Arrestees+(Final+Footnotes+Edit)%20(1).pdf.

  18. Rana Saad, Discovery, Development, and Current Applications of DNA Identity Testing, 18, Baylor Univ. Med. Ctr. Proc., 130, 130-31 (2005).

  19. Saad, supra note 19.

  20. Saad, supra note 19.

  21. The FBI’s Combined DNA Index System (CODIS) Hits Major Milestone, FBI Nat’l Press Off, (May 21, 2021), https://www.fbi.gov/news/press-releases/the-fbis-combined-dna-index-system-codis-hits-major-milestone.

  22. Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, FBI, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (last visited Nov. 19, 2021).

  23. N.C. Gen. Stat. § 15A-266.

  24. State of N.C. Dep’t of Just., DOJ Annual Report on DNA Database FY20-21, 155th Sess., at 3 (2021).

  25. Amanda Overman, Forensic Scientist Supervisor/CODIS State Administrator, Cold Case Training (2021), https://youtu.be/O5aV w5EQ0Zg.

  26. State of N.C. Dep’t of Just., DOJ Annual Report on DNA Database FY20-21, 155th Sess., at 2 (2021).

  27. State of N.C. Dep’t of Just., DOJ Annual Report on DNA Database FY20-21, 155th Sess., at 4 (2021).

  28. State of N.C. Dep’t of Just., DOJ Annual Report on DNA Database FY20-21, 155th Sess., at 6 (2021).

  29. See State of NC. Dep’t of Just., DOJ Annual Report on DNA Database FY20-21, 155th Sess., at 2-6 (2021).

  30. N.C. Gen. Stat. § 15A-266.3A (f-g)

  31. N.C. Gen. Stat. § 15A-266.3A (2010) (Specifying people arrested for certain offenses must have their DNA placed in the Database); N.C. Gen. Stat. § 15A–266.2 (2010) (Adding definitions for arrestee and conviction).

  32. N.C. Gen. Stat. § 15A-266.3 (2010).

  33. N.C. Gen. Stat. § 15A-266.3A.

  34. N.C. Gen. Stat. § 15A-266.3A.

  35. Robert S, Brinson, North Carolina Criminal Justice Information Network Governing Board Rep.,CJIN (April 2014), https://cjin.nc.gov/govBoard/Reports/2014 CJIN Report transmittal and Report-1.pdf

  36. Amanda Overman, Forensic Scientist Supervisor/CODIS State Administrator, Presentation at Cold Case Training 2021, The Role of The Forensic Biology Section and CODIS in Sexual Assault Kit Testing (2021).

  37. N.C. Gen. Stat. § 15A-266.3A(a); -266.4(a) (“Unless a DNA sample has previously been obtained by lawful process and the DNA record stored in the State DNA Database . . .”).

  38. Overman, ; https://forensicresources.org/wp-content/uploads/2019/07/Procedure-for-Expungement-of-Arrestee-and-Convicted-Offender-Samples-03-12-2018.pdfsupra note 37.

  39. Seth Dearmin, Annual Report DNA Database FY1718, Joint Legislative Oversight Committee on Justice and Public Safety, Dep’t of Just. (2018), https://webservices.ncleg.gov/ViewDocSiteFile/24276.

  40. Annual Report DNA Database FY1718, Dep’t of Just. (Feb. 2015), https://webservices.ncleg.gov/ViewDocSiteFile/24276.

  41. Overman, supra note 37.

  42. Annual Report DNA Database FY1718, Dep’t of Just. (a cold hit occurs when the hit comes from samples already in the DNA Database).

  43. Targeting Violent Criminals by Investing in DNA, Dep’t of Justice (Feb. 1, 2015).

  44. Targeting Violent Criminals by Investing in DNA, supra note 43.

  45. N.C. Gen. Stat. § 15A-266.3A(h); -266.4 (the main reason for not reporting is that the State should have expunged the DNA from the record for some reason).

  46. State v. Emerson, 949 N.E.2d 538 (Ohio Ct. of App. 2011); Pharr v. Commonwealth, 646 S.E.2d 453 (Va. Ct. of App. 2007); Herman v. State, 128 P.3d 469 (Nev. Sup. Ct. 2006); State v. Hauge, 79 P.3d 131 (Haw. Sup. Ct. 2003); State v. Notti, 71 P.3d 1233 (Mont. Sup. Ct. 2003); People v. Baylor, 97 Cal. App. 4th 504 (Cal. Ct. of App. 4th Dist. 2002); State v. McCord, 562 S.E.2d 689 (S.C. Ct. App. 2002); State v. Barkley, 551 S.E.2d 131 (N.C. Ct. App. 2001); Patterson v. State, 744 N.E.2d 945 (Ind. Ct. App. 2001); Smith v. State, 734 N.E.2d 706 (Ind. Ct. App. 2000); Wilson v. State, 752 A.2d 1250 (Md. Ct. Spec. App. 2000) ; Bickley v. State, 489 S.E.2d 167 (Ga. Ct. App. 1997); People v. King, 232 A.D.2d 111 (N.Y. 2d Dept. 1997); Washington v. State, 653 So.2d 362 (Fla. 1994); cert denied, 516 U.S. 946 (1995); Compare People v. Rodriguez, 193 Misc.2d 725 (Sup. Ct., Kings Co. 2002).

  47. Emerson, 949 N.E.2d 538; Hauge, 79 P.3d 131; Bickley, 489 S.E.2d 167.

  48. Id.

  49. Jill Lawless, Is your DNA in a police database?, N.B.C. News (July 12, 2013), https://www.nbcnews.com/news/world/your-dna-police-database-flna6c10617124.

  50. Lawless, supra note 50.

  51. The FBI’s Combined DNA Index System (CODIS) Hits Major Milestone, FBI Nat’l Press Off. (May 21, 2021), https://www.fbi.gov/news/press-releases/the-fbis-combined-dna-index-system-codis-hits-major-milestone.

  52. Lawlesssupra note 50.

  53. See Lawless, supra note 50;The FBI’s Combined DNA Index System (CODIS) Hits Major Milestone, FBI Nat’l Press Off. (May 21, 2021).

  54. Lawless supra note 50.

  55. Maryland v. King, 569 U.S. 435, 440 (2013).

  56. Id.

  57. Id.

  58. Id.

  59. Id. at 465-66.

  60. Id. at 466.

  61. Id. at 465.

  62. Id. at 466

  63. Id.

  64. Id. at 467

  65. See id.

  66. State v. Emerson, 949 N.E.2d 538 (Ohio Ct. of Appeals, 2011); Pharr v. Commonwealth, 646 S.E.2d 453 (Va. Ct. of Appeals, 2007); Herman v. State, 128 P.3d 469 (Nev. Sup. Ct., 2006); State v. Notti, 71 P.3d 1233 (Mont. Sup. Ct. 2003); People v. King, 232 A.D.2d 111 (N.Y. 2d Dept. 1997); Washington v. State, 653 So.2d 362 (Fla. 1994); cert denied, 516 U.S. 946 (1995).

  67. State v. Barkley, 551 S.E.2d 131, 131 (N.C. Ct. App. 2001).

  68. Id. at 133.

  69. Id.

  70. Id.

  71. Id. at 135.

  72. See Id.

  73. United States v. Kincade, 379 F.3d 813, 836 (9th Cir. 2004); see also Green v. Berge, 354 F.3d 675, 679-81 (7th Cir. 2004).

  74. Id. (The Ministry of Love was one of the four ministries in the book 1984. It was in charge of surveillance and dealing with dissidents).

  75. Id"We also wish to emphasize the limited nature of our holding. With its alarmist tone and obligatory reference to George Orwell’s 1984, Judge Reinhardt’s dissent repeatedly asserts that our decision renders every person in America subject to DNA sampling for CODIS purposes, including ‘attendees of public high schools or universities, persons seeking to obtain drivers’ licenses, applicants for federal employment, or persons requiring any form of federal identification, and those who desire to travel by airplane,’ post at 11480-81, ‘political opponents,’ ‘disfavored minorities,’ post at 11487, 30Link to the text of the note ‘all newborns,’ post at 11489, ‘passengers of vehicles,’ ‘arrestees,’ post at 11515–no, really, ‘the entire population.’ Post at 11489."

  76. Case 30562/04 S. and Marper v. The United Kingdom, 2008 E.C.H.R. 1581.

  77. Pharr v. Commonwealth, 646 S.E.2d 453, 458 (Va. Ct. App. 2007).

  78. Id. at 454.

  79. Id. at 454.

  80. State v. Emerson, 949 N.E.2d 538 (Ohio Ct. of Appeals, 2011); Pharr v. Commonwealth, 646 S.E.2d 453 (Va. Ct. of Appeals, 2007); Herman v. State, 128 P.3d 469 (Nev. Sup. Ct., 2006); State v. Hauge, 79 P.3d 131 (Haw. Sup. Ct., 2003); State v. Notti, 71 P.3d 1233 (Mont. Sup. Ct. 2003); People v. Baylor, 97 Cal. App. 4th 504 (Cal. Ct. of Appeal, 4th Dist. 2002); State v. McCord, 562 S.E.2d 689 (S.C. Ct. App. 2002); State v. Barkley, 551 S.E.2d 131 (N.C. Ct. App. 2001); Patterson v. State, 744 N.E.2d 945 (Ind. Ct. App. 2001); Wilson v. State, 752 A.2d 1250 (Md. Ct. Spec. App. 2000); Bickley v. State, 489 S.E.2d 167 (Ga. Ct. App. 1997); People v. King, 232 A.D.2d 111 (N.Y. 2d Dept. 1997); Washington v. State, 653 So.2d 362 (Fla. 1994); cert denied, 516 U.S. 946 (1995).

  81. United States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012).

  82. Id. at 228-29.

  83. Id.

  84. Id. at 230.

  85. Id.

  86. Id.

  87. Id.

  88. Davis, 690 F.3d at 232.

  89. Id. at 233.

  90. Id.

  91. Id. at 247.

  92. Id. at 249.

  93. Id.

  94. Id.

  95. Id.

  96. Id. at 249-50.

  97. State v. Romano, 800 S.E.2d 644, 648 (N.C. 2017).

  98. Id.

  99. N.C. Gen. Stat. § 15A-266.3A.

  100. See Davis, 690 F.3d at 249.

  101. Id.

  102. N.C. Gen. Stat. § 15A-266.3A.

  103. United States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012).

  104. N.C. Gen. Stat. §§ 15A-266 – 270.

  105. National DNA Index System (NDIS) Operational Procedures Manual, at 30-31 (9th ed. 2021).

  106. N.C. Gen. Stat. § 15A-266.2 (1).

  107. N.C. Gen. Stat. § 15A-266.2 (1b).

  108. N.C. Gen. Stat. §§ 15A-266.3A-4.

  109. Johnson v. Forsyth County, 743 S.E.2d 227, 229 (N.C. Ct. App. 2013); see also Morrison v. Sears, Roebuck & Co., 354 S.E.2d 495, 498 (N.C. 1987).

  110. State v. Langley, 817 S.E.2d 191, 196 (N.C. 2018) (quoting Midrex Techs., Inc. v. N.C. Dep’t of Revenue, 794 S.E.2d 785, 792 (N.C. 2016)).

  111. Id.

  112. Sheffield v. Consolidated Foods Corp., 276 S.E.2d 422, 434 (N.C. 1981) (Finding one cannot consider the statute in a vacuum without looking at associated statutes).

  113. State v. Rankin, 821 S.E.2d 787, 796 (N.C. 2018) (quoting State v. Benton, 174 S.E.2d 793, 804 (N.C. 1970)).

  114. N.C. Gen. Stat. § 15A-266.3A.

  115. N.C. Gen. Stat. § 15A-266.3A.

  116. N.C. Gen. Stat. § 15A-268.

  117. See N.C. Gen. Stat. § 15A-268.

  118. See N.C. Gen. Stat. § 15A-268(e).

  119. N.C. Gen. Stat. § 15A-268(e).

  120. See N.C. Gen. Stat. § 15A-268.

  121. See N.C. Gen. Stat. § 15A-268.

  122. See N.C. Gen Stat. § 15A-268; see also § 15A-266.2.

  123. N.C. Gen. Stat. § 15A-266.10.

  124. N.C. Gen. Stat. §§ 15A-147 to -148, -266.3A; (The charge has been dismissed; the person has been acquitted of the charge; the defendant is convicted of a lesser-included misdemeanor offense that is not an offense included in § 15A-266.3A (f) or (g); no charge was filed within the statute of limitations; no conviction has occurred, at least three years has passed since the date of arrest, and no active prosecution is occurring; charges are dismissed; there are findings of not guilty as a result of identity theft or mistaken identity; and charges are dismissed on appeal or pardon of innocence is granted).

  125. N.C. Gen. Stat. §§ 15A-147 to -148, -266.3A.

  126. N.C. Gen. Stat. § 15A-266.3A(j).

  127. N.C. Gen. Stat. § 15A-266.3A(j).

  128. N.C. Gen. Stat. § 15A-266.3A(j).

  129. N.C. Gen. Stat. § 15A-266.3A(l-m).

  130. See N.C. Gen. Stat.§ 15A-266.3A

  131. State v. Langley, 817 S.E.2d 191, 196 (N.C. 2018) (quoting Midrex Techs., Inc. v. N.C. Dep’t of Revenue, 794 S.E.2d 785, 792 (N.C. 2016)).

  132. State v. Rankin, 821 S.E.2d 787, 796 (N.C. 2018) (quoting State v. Benton, 174 S.E.2d 793, 804 (1970)).

  133. State v. Barkley, 551 S.E.2d 131, 135 (N.C. Ct. App. 2001); but see United States v. Weikert, 504 F.3d 1, 17 (1st Cir. 2007) (“[T]here may be a persuasive argument on different facts that an individual retains an expectation of privacy in the future uses of her DNA profile”).

  134. Moore v. Regents of University of California, 51 Cal. 3d 120, 148 (1990).

  135. Id. at 142 (“[W]e do not purport to hold that excised cells can never be property for any purpose”).

  136. United States v. Sec. Indus. Bank, 459 U.S. 70, 76 (1982) (“bundle of rights” which constitute the “property”); In re Greens of Pine Glen, 576 S.E.2d 316, 322 (N.C. 2003).

  137. Bowditch v. Boston, 101 U.S. 16, 18 (1879) (holding under the common law that a property owner has the “right to destroy [his/her own] real and personal property”).

  138. E.g., In re Appeal of General Tire, Inc., 401 S.E.2d 391, 393-94 (N.C. Ct. App. 1991) (“We note at the outset that there is no inherent right to an appeal from an administrative agency’s decision unless a statute grants the right to appeal.”).

  139. N.C. Gen. Stat. § 15A-266.3A(l-m).

  140. See Bowditch, 101 U.S. at 18.

  141. See id.

  142. They voluntarily gave the DNA to the police.

  143. Moore v. Regents of University of California, 51 Cal. 3d 120, 148 (1990).

  144. See In re Appeal of General Tire, Inc., 401 S.E.2d at 393-94; N.C. Gen. Stat, § 15A-266.3A.

  145. N.C. Gen. Stat. § 15A-266.3A

  146. N.C. Gen. Stat. § 15A-266.3A

  147. See N.C. Gen. Stat. § 15A-266.3A

  148. N.C. Const. art. I, § 19.

  149. See N.C. Const. art. I, § 19.

  150. See N.C. Const. art. I, § 19.

  151. See State v. Romano, 800 S.E.2d 644, 648 (N.C. 2017).

  152. Herring v. United States, 555 U.S. 135, 144 (S. Ct. 2009).

  153. Id.

  154. See Romano, 800 S.E.2d at 648.

  155. 2021-NCCOA-150, P26 (N.C. Ct. App. 2021).

  156. Id. at P71-72.

  157. See § 15A-266.3A.

  158. See id.

  159. See 690 F.3d at 249.

  160. N.C. Gen. Stat. § 15A-266.3A.

  161. N.C. Gen. Stat. § 15A-266.3A.

  162. N.C. Gen. Stat. § 15A-266.3A.

  163. N.C. Gen. Stat. § 15A-266.3A.

  164. See generally N.C. Gen. Stat. § 15A-266.3A.

  165. See generally N.C. Gen. Stat. § 15A-266.3A

  166. See generally Womble, 2021-NCCOA-150 at P26.

  167. See generally Davis, 690 F.3d at 233; see also § 15A-266.3A.