The NewStandard ceased publishing on April 27, 2007.

Victims Challenge Police Use of Controversial ‘DNA Dragnetsâ€TM

by Kevin Bersett

Using what critics call intimidation tactics, police departments nationwide obtain “voluntary” DNA samples from non-suspects for use in high-tech ‘manhunts,’ then keep genetic info on file.

Sept. 27, 2004 – The police knock at your door. An officer says they are looking for a serial murderer and asks you to give a DNA sample because you roughly fit a physical description of the killer. If you refuse, the police will wonder why you did not want to clear your name.

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Without a lawyer at your side you do not know what your options are. The police still might be able to get a search warrant for your sample, and then your name would be on the public record as part of this investigation. What would your boss think if he saw your face on the evening news in connection with these horrendous crimes?

Two recent criminal cases have highlighted the problems with this controversial police practice commonly known as "DNA dragneting."

Over the last three years, police have used this investigative technique to look for a serial murderer in Baton Rouge, Louisiana and a serial rapist in Omaha, Nebraska. According to local news reports, the dragnet in Baton Rouge ensnared more than 1,000 people over the course of ten months, netted no viable suspects, and gave way to a lawsuit accusing the police of violating the Fourth Amendment rights of those sampled without written consent. The lawsuit is also asking that police destroy or return the DNA samples of those exonerated of any wrongdoing.

In June, Omaha police launched a DNA dragnet after the fourth in a series of what they believe are related rapes dating back to September 2002. Based on witness descriptions of the rapist, police asked more than 30 black employees at the Omaha Public Power District to give DNA samples. Once again, the dragnet produced no suspects, rattled many of the targeted employees, and has those who refused to give samples but were forced under warrant to give one anyway asking a judge to unseal the applications used to obtain warrants for their DNA samples.

As the cases in Baton Rouge and Omaha demonstrate, police must sidestep a number of potential Constitutional and civil rights violations when conducting DNA dragnets.

Since the late 1980s, police departments across the United States -- including San Diego, California; Ann Arbor, Michigan; Miami, Florida and Charlottesville, Virginia -- have used dragnets to ask thousands of people to "voluntarily" give DNA samples in cases usually involving serial murders and rapes when traditional police techniques have failed to produce any suspects.

The way dragnets typically work is police ask people to give DNA samples for a criminal investigation and collect the DNA by swiping a swab in the person’s mouth. Those asked for the sample are not considered suspects in the case -- they may just fit a very broad description of the perpetrator based on witness accounts, or, in some cases, they may live or work near the crime scene. The samples are then compared with biological tissue taken from the crime scene in an attempt to find a match.

"If you get a match these days you have a very powerful showing of identity," said Edward Imwinkelried, a law professor at the University of California-Davis.

All 50 States have DNA databanks containing the profiles of convicted violent or sex offenders. Another 34 states require DNA samples from all convicted felons with about half of those states requiring samples from people convicted of specific misdemeanors.

As the cases in Baton Rouge and Omaha demonstrate, police must sidestep a number of potential Constitutional and civil rights violations when conducting DNA dragnets.

The American Civil Liberties Union (ACLU) opposes the dragnets. In a statement issued last year, the group questioned how any DNA dragnet could be considered voluntary.

"Being approached by a police officer and asked to give a ‘voluntary’ DNA sample could lead a reasonable person to believe that he has no choice but to consent to the request," wrote the ACLU. "[S]uch coercive behavior is a violation of the Fourth Amendment to the Bill of Rights, which protects an individual’s privacy until evidence is produced and a warrant obtained that would compel an invasive search."

Civil libertarians also have other concerns related to DNA dragnets: the violation of the Fifth Amendment against self-incrimination if police use coercion to retrieve the samples; the use of unreliable witness descriptions to initiate the dragnets; the formation of databases containing the samples of exonerated individuals; and the practice of racial profiling when dragnets target one specific group.

Imwinkelried said it is legal for police to ask someone to voluntarily give a DNA sample, though they must be careful how they phrase the request. Police can easily mislead the person by saying it is their "duty" to give the sample. "That DNA sample would be a product of a Fourth Amendment violation," he said. A conviction might be reversed if the person’s sample was taken illegally. "The problem is that it is easy for the police to cross the line," he said.

Legislation pending approval by the Senate would expand the FBI's current DNA data collection program to include samples taken from arrestees in some states even when the suspect was never convicted of a crime.

According to the American Bar Association’s Journal, Floyd Wagster Jr., whose name appears on the Baton Rouge lawsuit, accused the police of crossing that line. He claims police threatened to get a court order for his sample and to put him on the news if he continued to refuse to cooperate with the dragnet. Wagster, who was on probation for a drug conviction at the time, said he was also threatened with a drug test and jail time. A judge recently threw out charges Wagster brought against the police and attorney general on a technicality because the court ruled he filed the case too late.

Several people police asked to give DNA samples for the Omaha case also refused to cooperate. According to Tim Butz, executive director of the ACLU’s Nebraska chapter, police obtained search warrants in an effort to retrieve their DNA. "We don’t know what the police are telling the courts to get those warrants," he said.

The court has sealed the warrant applications. Earlier this month, a judge said he would unseal the warrant applications, but they remain sealed pending an appeal from the city.

Imwindelried said that depending on the state, police either have to show probable cause or founded suspicion when they go before the judge to obtain the warrant. In Nebraska, police must show probable cause: reasonable suspicion that the person has committed the crime.

Butz said police have been saying that hundreds of people in addition to the Omaha Public Power District employees have been targeted in the Omaha case. He questions why some people who do not fit the description of the rapist have been asked by police to give DNA samples. According to Butz, a body builder was asked to give a sample even though the perpetrator is said to have a large stomach, and two other men targeted by the dragnet are much taller than the described perpetrator.

Omaha police have described the rapist as a black male, 25-40 years of age, approximately 5’3" to 5’9" tall, stocky build with a large stomach, broad shoulders, and weighing approximately 175 to 250 lbs.

"They aren’t following their own profile," Butz said.

According to a report in the Omaha World-Herald, some of the Omaha Public Power District employees said they "felt degraded" by the process and likened it to a "cattle call."

And now they and the volunteers in Louisiana are wondering what will happen to the DNA samples of those who have been exonerated of any wrongdoing.

Butz said the police have promised they will destroy the DNA samples in the Omaha case, but not until the case is resolved. "We don’t believe the police have the power to hold the sample once it exonerates the person," he commented.

Omaha police refused to comment for this story and have stopped talking to the media about the case.

The judge in the Baton Rouge case has allowed the part of the lawsuit regarding the destruction or return of the DNA samples to go forward.

Whether DNA samples from dragnets can legally be held in databases is not clear. Imwinkelried said the issue is disputed, and that there is presently no requirement that police destroy the samples. The person targeted by the dragnet would have to say when giving consent that they only want it to be used for the current investigation.

In at least one dragnet, police were not allowed to keep the DNA samples in a database. According to the ACLU, 160 black men whose DNA was obtained in the dragnet investigation of a serial rape and murder case in Ann Arbor, Michigan won a monetary settlement and an order that police return or destroy their samples. None of the samples in that dragnet matched the DNA from the crime scene.

The ACLU, which has been fighting a losing battle against DNA databases, opposes the samples from dragnets being added to the databases. "This guy deserves to be caught, but are you going to trample on the rights of hundreds of people by forming a database?" Butz asked.

The ACLU contends that state and national databases should be limited to samples taken from convicted violent felons where biological evidence is relevant. Butz explains that adding the DNA exonerated people caught up in dragnets would put information about innocent people into a database for criminals.

According to Smith Alling Lane, a Tacoma, Washington law firm and governmental public affairs corporation that follows DNA legislation, all 50 States have DNA databanks containing the profiles of convicted violent or sex offenders. Another 34 states require DNA samples from all convicted felons with about half of those states requiring samples from people convicted of specific misdemeanors.

Only Louisiana, Virginia and Texas require DNA samples from people arrested but who have not been convicted of certain crimes. In Louisiana, police take and store DNA samples from any felony arrestee, while Virginia allows for the retrieval and storage of samples from violent and attempted violent felony arrests. Texas takes samples from those indicted of sexual assault and burglary and from those arrested of felony sexual assault who have a prior felony sexual assault conviction.

The FBI Laboratory's Combined DNA Index System (CODIS), implemented in 1998, links the state databases containing convict DNA to give police a much larger pool of samples. According to Smith Alling Lane, legislation pending approval by the Senate would expand CODIS to include the samples taken from arrestees in the applicable states even when the suspect was never convicted of a crime.

Some say the only way to remedy the racial profiling concerns presented by DNA dragnets is to create a universal database. "Oh sure, I’ve been an advocate of DNA databases for a long time -- a universal database," Imwinkelried said. "One of the problems in this country is racial discrimination. The data indicates that minorities are wrongfully over represented among both convicts and arrestees. If you had a universal database, this would not be a problem."

The ACLU sees a universal database as a government invasion of individuals’ privacy. "We have Fourth and Fifth Amendment concerns about a compulsory database," Butz said.

"We would fight a universal database as best we could," Butz further remarked, "and I don’t think we would have a lot of problems finding allies."

DNA samples contain genetic information, including one’s disposition to certain diseases. Privacy advocates are worried this information could be used against those individuals by the government itself or anyone else who obtains access to the records.

Tim Schellberg of Smith Alling Lane’s governmental affairs department, said that only the computer read-out -- what he called junk DNA -- is kept in the databases. "It means nothing other than saying you’re not someone else," he said, adding that DNA databases have been an "incredible tool" for law enforcement officials.

DNA dragnets have rarely succeeded in netting suspects for the police. According to a study recently conducted by Samuel Walker, a criminal justice professor at the University of Nebraska-Omaha, a case in Lawrence, Massachusetts is the only DNA dragnet out of eighteen reported to have been carried out in the United States to result in the arrest and conviction of a perpetrator. The dragnet targeted 25 employees at a nursing home where a resident was raped. According to the study, the largest DNA dragnet in the United States was conducted in Miami in 1994. In that instance, police checked the DNA of about 2,300 individuals in the search for a serial murderer.

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The NewStandard ceased publishing on April 27, 2007.

Kevin Bersett is a contributing journalist.

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