Can swabbing for DNA go too far?


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In the settlement around Cove Run Creek, nobody said no when police came asking for their DNA.

A dead baby, wrapped in a flannel shirt and plastic bag, then stuffed into a knapsack, had been abandoned in the woods in North Union, Fayette County, sometime in 2000. As police tell it, the dozen or so girls questioned were perfectly willing to allow a trooper to take a saliva swab from their mouths so a lab could trace the DNA.

"Usually if they have nothing to do with it they have no problem giving up the swab, the sample," explained James A. Pierce, the trooper who cracked the case earlier this month.

Sarah S. Hawk, a 25-year-old woman from the area, was found by that process of elimination. Her DNA was obtained by a search warrant after one of her sisters voluntarily gave a swab this spring.

When the lab identified the sister's DNA as belonging to a relative of the baby, police got search warrants so that they could get swabs from the other sisters. Miss Hawk's came back a match, and she later confessed.

Case closed?

Probably, say legal scholars. But the wider question about how much the government can gather -- and possibly retain -- in the course of solving a crime is far from settled.

"It's emblematic of the problem. We think science is going to be the solution to all our problems," said Tim Sparapani, senior legislative counsel for the American Civil Liberties Union.

He worries that a growing reliance on DNA screens, and law enforcement's growing desire to bank such data, could undermine privacy and skew law enforcement.

"A lot would depend on how the samples were acquired," countered Akhil Reed Amar, a constitutional scholar at Yale Law School who recently published a series of provocative proposals for a nationwide DNA data bank, to be built from samples taken at birth.

The database, he argues, would be a wellspring of information from which innocent suspects could be cleared and the real malefactors determined, much the way fingerprints now provide lock-sure evidence against real culprits, a sort of safeguard against wrongful prosecution.

Mr. Amar's proposal would require strict limits on the use of that data and that the information taken from the DNA is only so-called "junk DNA" coding -- enough to identify the person, but not enough to give up information such as a person's genetic predispositions to various diseases that could affect their employment or insurability.

"The same comprehensive DNA statute that required mandatory blood tests and cheek swabs could also provide that only the DNA fingerprint be done, with the rest of the biological sample destroyed," Mr. Amar wrote. "The law could further provide for elaborate safeguards against the misuse of samples, including an explicit statutory requirement or implicit understanding that the whole program be headed by a distinguished civil libertarian."

Current law, though, does not limit governments to gathering only "junk" DNA, and the government has been building a database from samples taken from every convicted felon.

Civil libertarians also worry about what they call "function creep" -- the risk of data gathered for one purpose being appropriated for other purposes down the road. They cite the Social Security number, introduced under law in the 1930s as something to be used solely for assignment of retirement benefits. Today, it is requested by banks, credit card companies and a range of state and federal agencies as a de facto national identification number.

And DNA once surrendered voluntarily can be retained and used down the road, scholars say. Trooper Pierce, for the record, says police don't retain samples from the innocent.

"Eventually, if they have nothing to do with it, that evidence is usually destroyed," he said.

In the baby case, he said he approached only those who were plausible subjects of interest in the case.

"Either you had a lead or you had a reason to go see this person," he said.

"He had a dozen different people he actually developed a clear criminal predicate for? I find that a little shocking," said the ACLU's Mr. Sparapani. "Maybe this is a minor occurrence, but if this becomes commonplace, you will see an exacerbation of the problem."

To an extent, that question about a clear criminal predicate as grounds for obtaining evidence such as DNA goes to the heart of a broader argument surrounding the Fourth Amendment, the one that dictates that individuals shall be protected from "unreasonable" search and seizure. Scholars such as Mr. Amar note that the Fourth Amendment does not preclude warrantless searches, and certainly not the acceptance of voluntary evidence.

As for warrants, Trooper Pierce obtained that for Miss Hawk and the remaining sisters who were not tested.

Is it reasonable to ask people for such information -- especially when they voluntarily give it up?

Trooper Pierce said residents around Cove Creek were happy to cooperate in the case, even to the point of providing DNA, because they wanted the crime solved.

Mr. Sparapani has his doubts, worrying about "the coercive effect of having a police officer request a sample. It's not easy to refuse a police request."

But without the evidence, argues Trooper Pierce, there would have been no case.

"This was a case where there were just so many people to look at and when you thought you had the right person it would come back and not be the right person," he said. "I eliminated maybe a half dozen girls."


Dennis Roddy can be reached at droddy@post-gazette.com or 412-263-1965.


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