In the 1970s, Colorado and five other states built on Justice Brennan's famous dictum in Davis v. Mississippi to create "nontestimonial identification evidence" statutes and rules of criminal procedure. These statutes and rules enable police to gather physical evidence such as fingerprints, hair samples, and bodily fluids from individuals reasonably suspected of having committed a felony. While the states followed the Davis dictum in requiring a court order for this evidencegathering, they also followed the dictum's suggestion that nontestimonial identification procedures might be constitutionally acceptable even in the absence of probable cause to arrest. Thus, although they provide the states with an invaluable tool of criminal investigation, the rules and statutes may violate Fourth Amendment standards for invasive searches and seizures. This Comment offers a possible reform that would both maintain the investigatory power of the rules and statutes and ensure that they pass constitutional muster. It also urges the U.S. Supreme Court to grant certiorari on a nontestimonial identification evidence case, to settle the legacy of the Davis dictum and provide the states with much-needed constitutional guidance.

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