ACLU of Louisiana Raises Constitutional Concerns in Police Use of DNA Dragnets to Hunt Serial Killer

Affiliate: ACLU of Louisiana
January 15, 2003 12:00 am

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NEW ORLEANS — The American Civil Liberties Union of Louisiana today urged local law enforcement officials to focus on credible evidence and suspicion in their search for a serial killer, rather than continuing a DNA dragnet that has already netted samples from 800 white men in the Baton Rouge area and another 100 in Lafayette.

“Along with everyone else in South Louisiana, the ACLU wants law enforcement to bring the person responsible for the terrifying serial killings to justice as quickly as possible under the rule of law,” said Joe Cook, Executive Director of the ACLU of Louisiana. “The tactics being used by law enforcement in this case however, raise deeply troubling questions, and we are concerned that a dragnet approach based on nothing more than dubious eyewitness accounts could harm, rather than help, the investigation.”

The ACLU’s Cook said that 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. And such coercive behavior, the ACLU said, 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.

Cook said that recent news reports indicate that police officers have implied or expressly threatened some men with a warrant and release of their name to the public if they did not “voluntarily” comply.

“The police,” he said, “appear to act as if the persons targeted in the dragnet are guilty until proven innocent through the results of a DNA test. This could not be more un-American.”

Courts have found in similar cases that an individual’s consent is invalid when he or she is subject to duress or coercion. Under such circumstances, a person not in legal custody may have their Fifth Amendment right against self-incrimination violated. If police get a DNA match in that manner, prosecution of the accused might be jeopardized, Cook said.

One individual in the Baton Rouge area has publicly claimed that he refused on principle to allow a DNA swab and felt pressured by the officers to give one. His name ended up being released to the public from a warrant that compelled him to give a sample, which turned up negative.

In another case, Cook said that the ACLU had received a report that an employee was suspended from work after officers told his supervisor that he had refused to take the test. In at least two similar dragnets conducted across the country since 1994, “volunteers” have claimed harassment and coercion by the police.

If police do not scrupulously follow constitutional guidelines and the rulings of the courts, Cook said, they encourage disrespect for the rule of law by the general public. Also, they may leave themselves open to a civil rights action, as was the case following a recent DNA dragnet in Ann Arbor, Michigan.

The Ann Arbor case resulted in a monetary settlement and an order to return or destroy the samples of 160 black men who were targeted in the DNA dragnet. None of the samples matched the DNA from the crime scene in the Ann Arbor case.

“As we saw in Ann Arbor,” Cook said, “finding a killer in a haystack calls for a focused and legally sound search by the police that makes the stack smaller, not larger.”

To protect civil rights and civil liberties while using DNA technology, the ACLU recommended that lawmakers:

  • Make DNA testing available to criminal defendants that have claims of innocence and remove post conviction bars to consideration of this evidence.
  • Ensure that biological samples (blood, saliva, etc.) upon which the identification testing is performed be destroyed within a reasonable period after testing is completed and pending criminal matters are resolved.
  • Limit genetic profiles entered into any state or national database to those from persons convicted of serious violent felonies where biological evidence is relevant.
  • Prohibit states from performing non-consensual genetic testing on accused people who have not been convicted except when a court has ordered such testing.

Cook also noted that eyewitness accounts are notoriously unreliable, as demonstrated in the recent case of the Washington snipers in which the police circulated descriptions of assailants in a white Ford van, only to later learn that no such vehicle was involved. “Imagine the time and resources lost if the Washington police had taken DNA samples of everyone in the Washington area who drove a white van,” Cook said.

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