And that trend — coming at a time of heightened privacy concerns after
recent revelations of secret federal surveillance of telephone calls and
Internet traffic — is expected only to accelerate after the Supreme
Court’s recent decision upholding a Maryland statute allowing the
authorities to collect DNA samples from those arrested for serious
crimes.
These local databases operate under their own rules, providing the
police much more leeway than state and federal regulations. And the
police sometimes collect samples from far more than those convicted of
or arrested for serious offenses — in some cases, innocent victims of
crimes who do not necessarily realize their DNA will be saved for future
searches.
New York City has amassed a database with the profiles of 11,000 crime
suspects. In Orange County, Calif., the district attorney’s office has
90,000 profiles, many obtained from low-level defendants who give DNA as
part of a plea bargain or in return for having the charges against them
dropped. In Central Florida, several law enforcement agencies have
pooled their DNA databases. A Baltimore database contains DNA from more
than 3,000 homicide victims.
These law enforcement agencies are no longer content to rely solely on
the highly regulated network of state and federal DNA databases, which
have been more than two decades in the making and represent one of the
most significant developments in the history of law enforcement in this
country.
The reasons vary. Some police chiefs are frustrated with the time it can
take for state crime labs to test evidence and enter DNA profiles into
the existing databases. Others want to compile DNA profiles from
suspects or low-level offenders long before their DNA might be captured
by the state or national databases, which typically require conviction
or arrest.
“Unfortunately, what goes into the national database are mostly
reference swabs of people who are going to prison,” said Jay Whitt of
the company DNA:SI Labs, which sells DNA testing and database services
to police departments. “They’re not the ones we’re dealing with day in
day out, the ones still on the street just slipping under the radar.”
The rise in these local databases has aroused concerns among some
critics, worried about both the lax rules governing them and the privacy
issues they raise.
“We have been warning law enforcement that when public attention began
to focus on these rogue, unregulated databases, people would be
disturbed,” said Barry Scheck, a co-director of the Innocence Project,
which seeks to exonerate wrongfully convicted prisoners. “Law
enforcement has just gone ahead and started collecting DNA samples from
suspects in an unregulated fashion.”
For their part, law enforcement officials say that the crime-solving benefits of local databases are dramatic.
“Our take is that it’s good for law enforcement and good for the
community,” said Doug Muldoon, police chief of Palm Bay, a city of about
100,000 in Central Florida, about its database, which has produced
1,000 matches. He said his officers could now use DNA to address the
crime conditions “in our community — property crimes and burglaries.”
State crime labs can take months to analyze evidence from low-level
felonies like that, he said.
As local authorities devise their own policies, they are increasingly
taking DNA from people on the mere suspicion of a crime, long before any
arrest, and holding on to it regardless of the outcome. Often
detectives get DNA samples simply by asking suspects for them.
Other times, investigators take DNA surreptitiously, from discarded
trash. Or the DNA might originate from a warrant issued in a specific
case, authorizing the authorities to compare it against crime scene
evidence — with the resulting profile then stored in a database for
future use.
In some jurisdictions, it is not only suspects whose DNA goes into the database, but occasionally victims,
too.
If an officer goes to your house on a burglary, they will swab a door
handle and then they will ask, ‘Can we get a sample from the homeowner
so we can eliminate them as the source?’ ” Chief Muldoon said. “They
say, ‘Sure.’ ”
The homeowner’s sample goes into the database, too, Chief Muldoon said.
In many jurisdictions, so would samples from others even briefly
considered potential suspects.
“That’s so profoundly disturbing — that you would give DNA to the police
to clear yourself and then once cleared, the police use it to
investigate you for other crimes, and retain it indefinitely,” said
Stephen B. Mercer, the chief attorney of the forensics division of the
Maryland public defender’s office and one of the lawyers involved in the
case that resulted in the recent Supreme Court decision on DNA. “If
that doesn’t strike at a core value of privacy, I don’t know what does.”
The Supreme Court’s decision last week, in Maryland v. King, was its
first to squarely address DNA collection and databanking. While that
decision said nothing explicit about the authority of local law
enforcement to keep DNA databases, it could well encourage local
jurisdictions to push ahead, several experts said.
“In light of the Supreme Court decision, more and more organizations are
going to be doing this,” said Frederick Harran, the public safety
director in Bensalem Township, a Philadelphia suburb that is
aggressively building its own DNA database.
The court’s decision readily accepted the utility of DNA collection as a
routine station house booking procedure, comparing it to
fingerprinting.
“King is a green light,” said Erin E. Murphy, a New York University law
professor who has written about DNA databases and DNA profiling. “It’s a
ringing endorsement of DNA testing, and many law enforcement agencies
would see this as a dramatic opportunity to expand DNA collection.”
It is not clear how many local jurisdictions maintain DNA databases. DNA
SI Labs provides databanks for nine police departments, including those
in Bensalem and Palm Bay, Mr. Whitt said, and has contracts with a
dozen other departments to build more.
Palm Bay shares its database of 15,000 profiles with nearby departments,
creating a regional pool. It is more common for prosecutors, the police
and local crime labs to maintain their own DNA data, typically from
suspects, which may be ineligible for upload to the national database.
Few states have laws regarding local DNA databases. Alaska prohibits
them. California and Hawaii are explicit in not precluding them. In many
states, including New York, the law is silent on the issue. And there
is little consensus about what DNA retention policies are appropriate at
the local level.
“There really are no rules as to what you can specifically keep,” said
Jill Spriggs, who runs the Sacramento district attorney’s crime lab.
“The forensic community is all over the board.”
The issues raised by these local databases include what type of DNA
testing should be permitted. In Denver, which keeps a local database,
the district attorney, Mitchell R. Morrissey, is a leading proponent of
familial DNA searching. The technique uses special software not to
identify matches, but for clues as to whether a relative of a person
whose DNA is on file may be the source of crime scene DNA.
Because local databases operate without the stricter rules governing
federal and local ones, local authorities have been able to set the pace
for how DNA is collected and used in criminal investigations. That
pace, experts say, could accelerate if rapid DNA testing devices capable
of quickly developing DNA profiles from samples are deployed in station
houses.
The ability to very quickly generate DNA profiles, experts say, could
provide a greater incentive for local authorities to build and maintain
their own database.
Mentioned in last week’s Supreme Court opinion, such technology is not
yet generally in the hands of law enforcement, although the Palm Bay
Police Department is field testing one such device.
http://www.nytimes.com/2013/06/13/us/police-agencies-are-assembling-records-of-dna.html?pagewanted=2&_r=1&hp
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