Defense lawyers fight DNA sampling on the sly

By Amy Harmon

The two Sacramento, California, sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway – without his knowledge.

Recently, the sheriff’s cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the slaying of Gallego’s aunt. If his DNA matched, they believed they would finally be able to close the case.

On that spring day in 2006, the detectives watched as Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.

The practice, known among law enforcement officials as surreptitious sampling, is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Gallego’s trial on murder charges, scheduled for May, is the latest of several in which the defense argues that the police circumvented the protection against unreasonable search and seizure guaranteed by the Fourth Amendment to the Constitution.

Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds, police officers are exploiting an unforeseen loophole in the requirement to show probable cause that a suspect has committed a crime before conducting a search. “The law cannot tolerate such backdoor methods, which seize something that any reasonable person expects to remain private,” Gallego’s lawyer, David Lynch, wrote in a motion to suppress the DNA evidence extracted from the cigarette butt.

The privacy implications of surreptitious DNA sampling may extend beyond individual investigations. The police could collect DNA deemed “abandoned” from targeted individuals and monitor their movements even if they are not suspected of committing a serious crime. Innocent people whose DNA turns up unexpectedly may find themselves identified by a database file that they did not know existed.

“Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court,” said Elizabeth Joh, a law professor at University of California, Davis, who studies the intersection of genetics and privacy law. “I don’t think a lot of people understand that.”

Law enforcement officials say they are just trying to solve crimes.

Over the last few years, several hundred suspects have been implicated by the traces of DNA they unwittingly shed well after the crime was committed, according to law enforcement officials. Many more have been eliminated from suspicion without ever knowing that their coffee cups, tissues, straws, utensils and cigarette butts were subject to DNA analysis by the police.

“It’s a great tool,” said Micki Links, a sergeant in the Sacramento sheriff’s homicide division. “Our hands are tied on a lot of things as far as what we can do and what we can search, so when we find something that’s within the law, we’re going to use it.”

Sometimes the police dupe suspects into relinquishing their genetic identity by offering them a Coke during a routine interview and picking up the can. In Buffalo, New York, last year, undercover police officers waited until Altemio Sanchez, suspected of strangling and raping several women over a quarter-century, had left a local restaurant before confiscating his glass. He later admitted to killing three women and received a life sentence.

Variations are growing as DNA processing technology lets laboratories derive a full profile from a minute amount of material at a relatively low cost.

In Gallego’s case, the detectives first checked the DNA extracted from the blood on the towel against the FBI database of some four million convicted offenders. Finding no match, they turned to suspects in the unsolved slaying of Leticia Estores, a Sacramento hairdresser. Gallego, 49, was among them.

They could have asked a judge for a search warrant to compel him to give them a DNA swab, but there was no guarantee that the judge would agree. Gallego had passed a lie detector test in which he denied any involvement in the killing, and had they asked him to volunteer a sample, he might well have refused.

Instead, the supervising detective asked for “the surreptitious collection of a DNA sample,” he wrote in his report.

The U.S. Supreme Court has yet to address whether there are constitutional limits on the covert collection of DNA. But with a few exceptions, lower court judges in more than a dozen recent cases have ruled that DNA clinging to water bottles left in interrogation rooms, on restaurant glassware and on cigarette butts is fair game for police inspection.

“There is no subjective expectation of privacy in discarded genetic material just as there is no subjective expectation of privacy in fingerprints or footprints left in a public place,” Washington State’s Supreme Court wrote last year in denying an appeal last year by John Athan, whose murder conviction was based on surreptitiously collected DNA.

Several court opinions on surreptitious sampling cited the U.S. Supreme Court decision in California v. Greenwood, which held that the Fourth Amendment did not apply when the police searched trash bags left on the curb by a suspected narcotics dealer.

But the Greenwood analogy, critics argue, ignores that most people have no idea that by failing to destroy a used coffee cup, they risk surrendering their genetic identity to scrutiny. Moreover, even if they do realize it, there is no way to avoid abandoning one’s DNA in public, short of living in a bubble.

“Unlike garbage that can be withheld or destroyed before it is released into the world,” reads the motion to suppress the DNA evidence in the Gallego case, “we cannot do so with our biological tissues.” A few courts have found that certain forms of surreptitious sampling do violate the Fourth Amendment.

Last year, the North Carolina Court of Appeals ordered a new trial for Blake Reed, a convicted burglar, because a police officer had kicked a cigarette butt off his patio and picked it up later. The judges found that Reed had an expectation of privacy on his patio.

And suspects may be wising up. After smoking another cigarette on the patio, Reed took apart the butt, removed the filter’s wrapper and shredded it, according to court documents. He told the detective he had seen the television show “CSI,” in which DNA often nails the suspect. Then he placed the remains in his pocket.