It’s a brave new world out there
Those genealogists who, like The Legal Genealogist, use DNA testing as part of our family history research often have to answer questions from our cousins about the way their DNA test results can be used.
The truth is, except in really extraordinary cases where the crime is very serious and the police have no clues at all, the chances that the police are going to turn to genealogy DNA databanks are pretty slim.
Why? Because if the police have probable cause to believe that a crime has been committed and that you committed it, they can walk into any judge’s office in this country and get a search warrant that will let them pick you up, trot you down to the nearest medical facility, and take whatever blood or saliva they want for a DNA sample and they’ll use their own lab, not 23andMe or AncestryDNA, to do the tests they want.1
And if the police don’t want you to know they’re on to you, they can sneak a DNA sample. They could watch you smoke at a bar and collect the cigarette butts when you leave. They could set up a phony job interview and give you a bottle of water to drink or a piece of cake to eat (in one case they gave the suspect a bottle of water AND a piece of cake and got DNA samples from the bottle and the fork). They could even send you something in the mail and get a DNA sample from the saliva you use on the flap of the envelope when you return that “send this in to WIN!” form.2
They can even have you flat out refuse to take a DNA test of any kind … and test your DNA anyway. Don’t believe me? Then you need to know about the Raynor case.
Now before I go into the facts, I need to say that this case presents all the tensions that can possibly exist in a criminal case. On one hand, the Constitutional rights of all people to privacy and to be free of unreasonable searches and seizures. On the other hand, the rights of all people to know that the guilty will be found, prosecuted and put where they can’t hurt anyone again. It’s a tough balance, and one that may end up being decided by the U.S. Supreme Court.
The case began in the early morning hours of a day in April 2006, when a woman in Maryland abruptly awoke to terror. A pillow pressed to her face. An assailant whose face she never saw. Rape. Repeated rape.
After the assailant fled, she ran to a neighbor’s home and reported the assault to police. The rapist, she told police, was white, had a medium build and had an odd metallic body odor. And, at the scene of the crime, DNA samples were collected.
But the samples didn’t match anybody. Not in any police database. Not any of the people the victim told police could have been involved. During more than two years after the attack, “the police obtained consensual DNA samples from approximately 20 individuals with possible connections to the 2006 rape, including several of the victim’s neighbors. None of those DNA samples matched the DNA collected from the victim’s home on the day of the rape.”3
Then in 2008 the victim gave the police one more name. The name of Glenn Raynor. He’d gone to school with the victim, was the prior owner of the home where the victim lived, he had the same basic build.
The police asked Raynor to come in for questioning. During a 30-minute interview at the stationhouse, they asked him for a DNA sample. He said no. He was not arrested and was allowed to leave the police station. But after he left the police swabbed down the chair where he’d been sitting, sent the swabs off for DNA analysis — and got a hit. They then used that evidence as the basis to ask for a search warrant and get a full DNA sample; testing proved it was a match.
Raynor moved to suppress the evidence, saying — in effect — human beings can’t move around in public without leaving DNA behind, and allowing the police to test it without a warrant is unconstitutional. The State argued that DNA when used solely for identification purposes wasn’t any different from fingerprints, and police don’t need a warrant to lift fingerprints from any public place.
Late last year, the Maryland Court of Appeals — the highest court in Maryland — came down on the side of the State in a 4-3 split of that seven-member court.
Writing for the majority, Chief Judge Mary Ellen Barbera agreed with the State’s argument that
(Raynor) did not possess an objectively reasonable expectation of privacy in the information the police analyzed because they tested only 13 junk loci, which, unlike other regions of the DNA strand, do not disclose the intimate genetic information … Instead, those loci reveal only information related to a person’s identity. In this regard, … law enforcement’s testing of the DNA evidence in this case is indistinguishable from its testing of fingerprints left unknowingly upon surfaces in public places, which does not implicate the protections of the Fourth Amendment.4
The Court’s reference to the 13 loci is to the CODIS markers, the ones used by the Congressionally-authorized database supervised by the FBI that holds and reviews DNA profiles from crime scenes and arrestees and convicts.
The four members of the Court noted that the public should be aware that DNA can be left around whenever folks are out in public and that, even if people don’t know that, “the fact that one has not knowingly exposed to the public certain evidence does not, by itself, demonstrate a reasonable expectation of privacy in that evidence.”5 It wasn’t a search or a seizure, they said, because the police “did not seize genetic material from (Raynor), nor in any way search him for it, but rather, collected it from an object on which the material had been left.”6
The dissenting judges in the case, in an opinion written by Judge Sally D. Adkins, strongly disagreed. Raynor’s interest in his DNA, they concluded, “is immensely personal and private, and deserves the staunchest protection under the Fourth Amendment. DNA has the potential to reveal enormous amounts of private information about a person. With today’s technology, scientists have the power to discern genetic traits, behavioral tendencies, propensity to suffer disease or defects, other private medical information, and possibly more.”7
The dissent warned that:
The Majority’s approval of such police procedure means, in essence, that a person desiring to keep her DNA profile private, must conduct her public affairs in a hermetically-sealed hazmat suit. Moreover, the Majority opinion will likely have the consequence that many people will be reluctant to go to the police station to voluntarily provide information about crimes for fear that they, too, will be added to the (police) database.8
And, the dissent added in a footnote, the majority ruling had implication for exercising routine rights of citizenship: “The Majority’s holding means that a person can no longer vote, participate in a jury, or obtain a driver’s license, without opening up his genetic material for state collection and codification.”9
A petition has been filed asking the United States Supreme Court to hear a challenge to the Maryland court’s ruling.10 Whether the Court will choose to get involved is anybody’s guess.
So when that cousin asks you, once again, whether his genetic genealogy test can be used by the police, remind him, once again, that the police don’t particularly want it — and they don’t need it.
First, the tests we take for genealogy aren’t all that useful to the police. Our tests tell us how we are like other people — other family members who share common ancestors with us. The CODIS markers focus on parts of the DNA that make us unlike other people and set us apart as individuals.
And, second, if the police want our DNA, they will get it.
Even if we say no.
It’s a brave new world out there…
SOURCES
- See, for example, United States v. Allen, 631 F.3d 164, 167-168 (4th Cir. 2011) (“Baltimore and federal authorities sought and obtained … the … warrant (that) authorized the collection of Allen’s DNA”). ↩
- The Office of the Denver District Attorney has the facts of some of these cases online. “Fourth Amendment DNA Cases,” DenverDA (http://www.denverda.org/ : accessed 7 Feb 2015). ↩
- Raynor v. State, 440 Md. 71, 76 (2014). ↩
- Raynor v. State, 440 Md. at 85. ↩
- Ibid. at 94-95. ↩
- Ibid. at 96. ↩
- Ibid. at 108. ↩
- Ibid. at 108-109. ↩
- Ibid. at 108 n.14. ↩
- See Byron Warnken, “Raynor v. Maryland – An Update and the Cert Petition,” Warnken LLC Attorneys at Law blog, posted 22 Jan 2015 (http://www.warnkenlaw.com/news/ : accessed 7 Feb 2015). ↩
Great blog with helpful info!
It’s going to be a case to watch if the Supreme Court takes it…
This was really interesting! I am not concerned about it, but the situation I wonder about is if police have a DNA sample from the crime scene but do not have a suspect at all to test. In that case, it seems like a genetic genealogy database could be useful – if they get a hit for a first cousin or closer, they then it could point them in the direction of the suspect’s family, ultimately leading to the suspect themselves.
It would be an exceedingly rare crime scene samples that’d enough to produce what’s needed for autosomal testing.
I think there are too many weak links in the chain of events behind each piece of information in genealogy DNA databases for law enforcement to be able to make much use of it. The standards become a lot tougher when you’re looking to take away someone’s freedom than when you’re trying to figure draw links between different branches of a family for social reasons.
The authorities would have to investigate the way the sample was obtained, transported and stored in order to show it wasn’t obtained from someone other than the person it supposedly came from, wasn’t damaged in collection, in transit, or mixed up with another sample or accidentally contaminated in the lab. They’d also need to be able to show the lab’s standard processes were valid, and the steps taken in testing that sample in question complied with all the requirements necessary to produce a trustworthy result. And that’s all assuming it can be shown that the genealogical connection between whoever was supposedly tested and whoever their suspect is can be proven correct. There’s good chance that after all that work, those tests wouldn’t be able to be met and the results wouldn’t be able to be used to prove anything.
No doubt about the chain of custody issues. No chance you could use the test itself in court. Whether you could use the test result to ask for a warrant… another kettle of fish.
Very interesting piece. I am not that involved in the DNA aspect of genealogy at this point but come from a chemistry background, so I do have a pretty good understanding of the underlying science. One question that I have is that when you send in a DNA sample to one of these company’s with the understanding of what you are to get in return – is one’s contract with the firm (implied or otherwise) very specific about what is done with the sample? In other words, are regulations in place that prevent a company from running broader DNA profiles while they simply share the more limited ones to their genealogy audience? If those regulations exist, who polices and enforces them?
It’s a matter of contract, and all major testing companies spell out what they can and can’t do in the contract terms.
Judy, as always your blog hits the nail on on the head.
Can’t wait to see you this week at RootsTech and finally get a picture with you and Tony Baker (The cousin who isn’t February 8, 2014)
Tony and I are already in the Salt Lake area, combined the conference with a mini vacation and Valentine’s Day. See you Thursday!
Lisa Baker
Thanks, Lisa — and oh boy! Looking forward to seeing you!
While interesting and informative as always, I was expecting (perhaps hoping for) commentary on possible future ramifications of the UK’s recent approval of three-parent children, as reported by the BBC: http://www.bbc.com/news/health-31069173. Perhaps for another Sunday you’ll consider and comment.
On the list for possible future discussion of course.
At what point will our children be given a DNA test at birth, for safety purposes only, of course, just like the application for a social security number is filed with the government?
Any day now…
I heard a comment one time that went something like this, “The Truth wants to be known”. Our DNA with its unique structure is our Truth.
Yet we all have elements of our own truths that we prefer to keep to ourselves, Stan. And this comes close to (or crosses) the line for many.
Excellent post and information. It makes me wish I had become an attorney.
It’s never too late… 🙂
I’m so glad they were able to identify the man who raped and terrified the victim. I can’t imagine how relieved she is. Cudos to the investigators for getting the sample.
Very interesting post as usual, Judy.
In Texas, Senate Bill 475 has been filed that would grant property rights in one’s DNA sample. Here’s a link to the bill text if you would like to take a closer look, http://www.capitol.state.tx.us/tlodocs/84R/billtext/pdf/SB00475I.pdf
Oy. You have to wonder how, if passed, that would affect Family Tree DNA, headquartered in Texas…
I have taught DNA profiling in school for some years. Fascinating science and it’s surprising how much can be demonstrated, often not with human samples, in school lab procedures.
The first case ever started with a DNA exoneration of a youth who had actually admitted to a murder. Traditional policing allied to a DNA dragnet identified the actual perpetrator, who had dodged the mass DNA testing; when tested his DNA was a match but there was also other traditional evidence which led to conviction. A perfect tale to tell of the strengths of DNA evidence as well as the strengths of detective work. (And nothing genealogical at all!)
An outline is on Wikipedia under “Colin Pitchfork.”
Very interesting! And an interesting first case too.
Judy, a recent local case had me wondering about using genealogy dna tests as a tool for police. The case was one of a newborn criminally abandoned by its parents. Theoretically a dna test on the baby could help identify possible parents through the various genealogical dna databases. While such an identification via genealogy would certainly not be scientifically rigorous enough to hold up in court, the police could easily directly test the potential parents DNA via any of the methods you mentioned above. My question, would such future evidence be excluded because the search via genealogy was unreliable? Its not an illegal search issue, so not really “fruit of the poisoned tree.”
If there’s no illegal search, then the question would be “does the evidence prove A and B are the baby’s parents,” not “if the evidence admissible.”
Hi, Judy,
I just wanted to let you know that your post was featured on my Friday Finds and Follows post this week on my AnceStories: The Stories of My Ancestors blog.
Thanks so much, Miriam!
Don’t these places like ancestryDNA keep your sample, so that the police could get it and do whatever thorough testing they wanted to do with it?
(a) You can ask not to have a sample kept if this is a concern to you. (b) The police need a sample with a chain of custody: they have to be able to prove this sample came from you, and not your brother or your son or your cousin. Genealogy samples don’t come with adequate proofs of chain of custody to be useful in court. So, once again, really, remember that if the police want your DNA, they will get it, and they’ll get it in a way where they can use it in court. This isn’t the likely choice for any of that.