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In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit
Posted on Sep 12, 2016
By Lauren Kirchner / ProPublica
The five teenage boys were sitting in a parked car in a gated community in Melbourne, Florida, when a police officer pulled up behind them.
Officer Justin Valutsky closed one of the rear doors, which had been ajar, and told them to stay in the car. He peered into the drivers’ side window of the white Hyundai SUV and asked what the teens were doing there. It was a Saturday night in March 2015 and they told Valutsky they were visiting a friend for a sleepover.
Valutsky told them there had been a string of car break-ins recently in the area. Then, after questioning them some more, he made an unexpected demand: He asked which one of them wanted to give him a DNA sample.
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Telling the story later, Adam would say of the officer’s request, “I thought it meant we had to.”
Over the last decade, collecting DNA from people who are not charged with — or even suspected of — any particular crime has become an increasingly routine practice for police in smaller cities not only in Florida, but in Connecticut, Pennsylvania and North Carolina as well.
While the largest cities typically operate public labs and feed DNA samples into the FBI’s national database, cities like Melbourne have assembled databases of their own, often in partnership with private labs that offer such fast, cheap testing that police can afford to amass DNA even to investigate minor crimes, from burglary to vandalism.
And to compile samples for comparison, some jurisdictions also have quietly begun asking people to turn over DNA voluntarily during traffic stops, or even during what amount to chance encounters with police. In Melbourne, riding a bike at night without two functioning lights can lead to DNA swab — even if the rider is a minor.
“In Florida law, basically, if we can ask consent, and if they give it, we can obtain it,” said Cmdr. Heath Sanders, the head of investigations at the Melbourne Police Department. “We’re not going to be walking down the street and asking a five-year-old to stick out his tongue. That’s just not reasonable. But’s let’s say a kid’s 15, 16 years old, we can ask for consent without the parents.”
In Bensalem Township, Pennsylvania, those stopped for DUI or on the street for acting suspiciously may be asked for DNA. Director of Public Safety Frederick Harran credits the burgeoning DNA database Bensalem now shares with Bucks County’s 38 other police departments with cutting burglaries in the township by 42 percent in the first four years of the program. Plus, Bensalem pays for the testing — which is conducted by a leading private lab, Bode Cellmark Forensics — with drug forfeiture money, making it essentially free, Harran added.
“This has probably been the greatest innovation in local law enforcement since the bulletproof vest,” Harran said. “It stops crime in its tracks…. So why everyone’s not doing it, I don’t know.”
While Harran tells his officers to be careful not to push people to consent, civil rights advocates see a minefield in cases that morph from stop-and-frisk to stop-and-spit.
There are clear precedents for obtaining DNA from people who have been convicted of crimes and from those under arrest. Under the Fourth Amendment, law enforcement must have a reasonable suspicion that a person is involved in a crime before requiring a search or seizure.
But the notion of collecting DNA consensually is still so new that the ground rules remain uncertain. Who can give such consent and what must they be told about what they’re consenting to? Who decides how long to keep these samples and what can be done with them? Maryland’s Supreme Court is the highest to rule on such a case, saying in 2015 that law enforcement could use DNA voluntarily provided to police investigating one crime to solve another, but that case didn’t take on DNA collected outside of an investigation, in chance street or traffic stops.
More challenges seem inevitable, said Jason Kreag, a University of Arizona law professor who’s written about local law enforcement’s expanding use of DNA. Police interviews that lead to DNA collection — particularly involving juveniles—have the potential to create “a coercive environment,” he said. “The laws and the legislatures just haven’t caught up with this type of policing yet.”
Harran echoed that. “There’s no laws, there’s nothing,” he said. “We’re in uncharted territory. There’s nothing governing what we’re doing.” He wants for private database programs to establish their own best practices.
Private DNA databases have multiplied as testing technology has become more sophisticated and sensitive, enabling labs to generate profiles from so-called “touch” or “trace” DNA consisting of as little as a few skin cells. Automated “Rapid DNA” machines allow police to analyze DNA right at the station in a mere 90 minutes. Some states allow “familial searching” of databases, which can identify people with samples from family members. New software can even create composite mugshots of suspects using DNA to guess at skin and eye color.
Strict rules govern which DNA samples are added to the FBI’s national database, but they don’t apply to the police departments’ private databases, which are subject to no state or federal regulation or oversight. Adam’s DNA, for example, was headed for a database managed for Melbourne by Bode Cellmark Forensics, a LabCorp subsidiary, which has marketed its services to dozens of small cities and towns. The lower standards for DNA profiles included in private databases could lead to meaningless or coincidental matches, said Michael Garvey, who heads the Philadelphia Police Department’s office of forensic science, a public lab.
“No one knows what the rules are about what they’re going to upload into these private DNA databases or not,” Garvey said. “Mixtures, partials — what’s their criteria? It varies.”
When Adam’s father found out the police had taken his son’s DNA, he immediately contacted the Melbourne Police Department to ask what the department intended to do with the sample and on what legal basis it had been taken. As a doctor, he understood what had happened could have far-reaching implications.
“My concern, being in the medical field, is that it’s not just Adam’s DNA,” he said. (ProPublica is withholding his name to protect the privacy of his son.) “It’s my DNA, it’s my wife’s DNA, and our parents. Not to sound bad, but you just get nervous. There’s some collateral damage there.”
Sanders explained that Adam had given his consent, making the sample usable under department policy, though it had not yet been sent to the lab for testing. He said that as long as Adam didn’t get into trouble, the family had nothing to fear.
Unsatisfied and determined to get the sample destroyed, Adam’s dad took the only other step he could think of — he called a lawyer. It was attorney Jason Hicks’ first encounter with a stop-and-spit case. He quickly realized he and his clients were on the edge of a legal frontier.
“First, I was just shocked that it had happened,” he said. “Then I was frustrated by the lack of a vehicle to challenge it.”
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