Within the last couple of years police in Florida, Pennsylvania, and a few other states have been asking members of the public for DNA samples. Many of the requests happen via casual encounters with police—not arrests or bookings at jail facilities, but regular encounters. ProPublica cites a case from Melbourne, Florida, last year involving five teenagers. A police officer came upon the youths sitting in a car that was parked in a gated community:
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.
After a long pause, Adam, a slight 15-year-old with curly hair and braces, said, “Okay, I guess I’ll do it.” Valutsky showed Adam how to rub a long cotton swab around the inside of his cheek, then gave him a consent form to sign and took his thumbprint. He sealed Adam’s swab in an envelope. Then he let the boys go.
Telling the story later, Adam would say of the officer’s request, “I thought it meant we had to.”
Adam did not have to honor Valutsky’s request, which is what it was. It was not a lawful order or demand: it was simply a request. Most people assume when a police officer asks—or tells you—to do something that you have to do it, or else. That is not always the case, but we’ve seen what usually happens when someone argues with a police officer.
The increase in local police departments obtaining DNA samples from the public is not, mind you, a partnership with the FBI which maintains a national database. These efforts are purely local and increasingly routine for people who are neither charged with crimes or suspected of crimes.
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.”
Naturally, concerns about privacy and misuse are surfacing, as they should. However, there are even more issues to consider in this newly emerging trend that may not be on the radar of privacy and civil liberties advocates.
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.
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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.”
In this particular case, the father of the youth decided to hire a lawyer to quell his concerns. The decision was made to request the DNA sample be destroyed, but because the youth had no criminal record and his DNA sample was, for all intents and purposes “evidence,” there was no court that could be approached to ask that the “evidence” be destroyed. The alternate route centered on the exact nature of the “voluntary request.” The youth believed that they were being detained, and thus had to comply with the officer’s request. After more than a year’s worth of back-and-forth wrangling, the sample was destroyed.
Good for Adam. Lucky for Adam. But what about everyone else?
