Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties

The decision was made, and announced the day after New Year’s 1987, that the murder inquiry was about to embark on a “revolutionary step” in the hunt for the killer of Lynda Mann and Dawn Ashworth. All unalibied male residents in the villages between the ages of seventeen and thirty-four years would be asked to submit blood and saliva samples voluntarily in order to “eliminate them” as subjects in the footpath murders.

—Joseph Wambaugh¹

Floyd Wagster Jr., an African American living in Baton Rouge, Louisiana, in 2002, was on probation for marijuana possession. The Baton Rouge police telephoned Wagster in August 2002 to inform him that he was not in trouble but that they wanted him to come to the station for questioning. Wagster told the deputy that he wished to talk to his lawyer before going to the police station. About an hour later the deputy called Wagster again and inquired if he had spoken to his lawyer. Wagster responded that he had not yet gotten a call back from his attorney. He then left his home to run some errands. No more than half a mile from his home Wagster was stopped by a local deputy. From his account, he was ordered to exit his van and was handcuffed, taken to the station house, interrogated, and asked to provide a DNA sample.² He gave the police a sample under what he described as conditions of duress. According to documents Wagster filed in court, once he was at the station, Baton Rouge police denied his repeated requests to speak to an attorney and threatened to take him to drug court and jail unless he provided them with a DNA sample.³

Police selected Wagster as part of a manhunt to find a serial killer who they believed had struck between 2001 and 2002 in the Baton Rouge area. Without probable cause, court warrants, or reasonable suspicion, police on the Baton Rouge Serial Killer Task Force requested DNA samples from 600 men. On July 31, 2004, Wagster filed suit in the U.S. District Court for the Middle District of Louisiana in Baton Rouge on behalf of the men who, while not required under state law, allegedly were coerced to give DNA samples. The judge threw out the charges Wagster filed against the police and the attorney general of Louisiana on the technicality that the complaint was filed too late.⁴

The police tactic used in Baton Rouge of rounding up large numbers of suspicionless individuals for a sample of their DNA is referred to as a DNA dragnet. The term “dragnet” entered the American popular lexicon in the 1950s as the title of a popular television police show that starred an imperturbable, street-smart detective named Joe Friday (played by Jack Webb) whose lack of emotion and devotion to facts were his calling cards. Law enforcement’s use of the term “dragnet” is derived more closely from commercial fishing, where nets are dragged along the bottom of lakes and rivers to capture schools of fish. Like a shrimp trawl, long abhorred by some environmentalists for its high levels of bycatch (where many other sea creatures are unintentionally caught in the nets), law-enforcement dragnets are often employed with a low degree of specificity. Although a dictionary defines a police dragnet as an organized system or network for gathering or catching people wanted by the authorities,⁵ in practice, dragnets are usually launched in search of a suspect. By soliciting DNA from scores of individuals fitting a loose physical description (e.g., “tall, black male”), if any, the dragnet seeks to generate a suspect when there is none. A dragnet is usually geographically focused, although the concept of a “national dragnet” is also used. The term “DNA sweep” is synonymous with “DNA dragnet.” Samuel Walker characterizes a DNA sweep as “a situation where the police ask a number of individuals to give voluntary DNA samples in an effort to identify the perpetrator of a crime or a series of crimes.”⁶

In recent years the DNA dragnet has been increasingly employed as a method for investigating crimes. When a crime scene has telltale forensic DNA evidence (blood, semen, hair follicles, and/or saliva) that is suspected to have been left by the perpetrator, and when the police do not have any viable leads on suspects, the DNA dragnet seeks to obtain biological samples from large numbers of people (sometimes the entire adult male or female population of a town) who either live or work in the vicinity of the crime scene and could conceivably have been at the location.

The first documented DNA dragnet was undertaken by police in Leicestershire Township in the United Kingdom, where they were investigating a double rape-murder of two 15-year-old girls. The story is fully documented in Joseph Wambaugh’s 1989 book The Blooding,⁷ a “nonfiction novel” that falls in the literary genre of Truman Capote’s In Cold Blood.

The police investigation of the double rape-murder came to a dead end until one inspector heard about a scientific breakthrough in DNA identification. Alec Jeffreys, a geneticist from the University of Leicester, developed a method in 1983 that used the sequences of certain variable segments of chromosomal DNA as a means of establishing personal identity (see chapter 1). The first success of his technique came when it proved that a French teenager was the father of an English divorcée’s child. Word of Jeffreys’s success had gotten around to an inspector at the Leicestershire Constabulary, who had a suspect for one of the two teenage rape-murders in Narborough. He asked Jeffreys to compare the DNA left in both the crimes with that of the suspect to determine whether their suspect was responsible for the double murder. Jeffreys’s technique showed that the DNA of the police’s suspect did not match that left at the crime scene, but he did determine that the DNA at both crime scenes came from the same person.

In early 1987 the chief inspector at Leicestershire attempted something that neither his department nor any other police department previously had undertaken. The chief inspector initiated a program in which police would obtain voluntary blood and saliva samples from all unalibied male residents between the ages of 17 and 34 in the villages of Narborough (where the murders had taken place) and two nearby villages, Littlethorpe and Enderby. It was estimated that as many as 4,000 men gave their blood and saliva samples to police.

Months passed, but no DNA matches occurred. By the fall of 1987 the police were still collecting blood samples. Lab technicians continued to process a mounting backlog of DNA samples. Ultimately the case did not turn on a DNA match at all. Instead, a woman overheard an individual talking to a friend at a pub about how he had paid a coworker to provide a DNA sample under his name. She reported this information to the police, who followed up with the individual, Colin Pitchfork, who had a police record as a “sexual flasher.” When the inspectors confronted Pitchfork with his scheme to substitute someone else’s blood for his own, he confessed to both crimes. The DNA dragnet, though not successful, strictly speaking, in this particular case, had come of age.

The largest dragnet on record took place in the northern town of Cloppenburg, Germany, in 1998. It was reported that as many as 12,000 of the 18,000 men between the ages of 18 and 30 in Cloppenburg and 35 surrounding villages had voluntarily taken part in the saliva testing.⁸ Police, hunting for a serial rapist who had raped and murdered an 11-year-old girl, indicated that they were prepared to collect DNA from up to 100,000 men to catch the perpetrator. The first group of 3,108 men aged between 25 and 45 lived near the scene of the rapes. Science magazine reported that another group of over 3,000 men was told to appear at the police station to provide samples.⁹ The largest DNA dragnet to date in the United States took place in Miami in 1994. Police sampled 2,300 men in connection with a search for a serial killer.¹⁰ The largest DNA collection in the United Kingdom consisted of a total of 4,500 local men sampled after a body was found in a quarry in Chipping Sodbury, England, in 1996.¹¹ The United Kingdom has carried out the highest number of dragnets of any single country; between April 1995 and January 2005 there were 292 DNA sweeps across England and Wales.

Mirroring the experience of the British police, a number of cities and towns in the United States, including ones in Louisiana, Florida, Virginia, Massachusetts, Illinois, and Michigan, have undertaken DNA dragnets. The imposition of these dragnets can conflict with the privacy rights of individuals and raises a number of additional concerns. The following are some of the core ethical and legal issues pertaining to DNA dragnets.

Dragnets are conducted without a warrant, probable cause, or individual suspicion. Should there be protections against coercion to obtain DNA samples? The Fourth Amendment of the U.S. Constitution protects individuals against unwarranted searches and seizure of property. When police take a nonvoluntary DNA sample from a suspect, it is considered a “search” and therefore generally requires a court warrant (see chapter 14).

In comparison, taking a fingerprint does not rise to the same level of privacy invasion and judicial involvement. Courts have generally ruled that law-enforcement officials are required to demonstrate that they have probable cause or that the fingerprint will establish the person’s connection to an offense, but a distinction is made between acquiring fingerprints from a person to determine guilt or innocence and gathering fingerprints for identification purposes. Increasingly, states allow police to take fingerprints routinely even when a probable cause or suspicion is not established.

According to Aaron Chapin, “DNA dragnets inherently rely on suspicionless searches. Rarely do police have even reasonable suspicion, let alone probable cause in testing DNA in mass sweeps.”¹² Other sorts of “sweeps” have been upheld by the courts, although probable cause is usually required. For example, the courts have upheld the right of police to stop cars on a highway in search of individuals involved in a robbery in cases where a description of the perpetrators is available. In addition, if the driver of a car has committed a vehicular infraction, the police are given authority to search the automobile for other unrelated infractions. Adam M. Gershowitz, writing in the UCLA Law Review, describes the incident-to-arrest doctrine:

Imagine that Defendant Dan is stopped by the police for driving through a stop sign. The officer thinks that Dan looks suspicious, but has no probable cause to believe Dan has done anything illegal, other than driving recklessly. Because running a stop sign is an arrestable offense and the officer is suspicious that Dan might be involved in more serious criminal activity, the officer arrests Dan for the traffic violation.

Under the search incident to arrest doctrine, officers are entitled to search the body of the arrestee to ensure that he does not have weapons and to prevent him from destroying evidence. The search incident to arrest is automatic and allows officers to open containers found on the person, even when there is no probable cause to believe anything illegal is inside.¹³

Police have been able to conduct DNA dragnets because the provision of samples in a dragnet is considered “voluntary.” There is a legal precedent for rendering constitutional under the Fourth Amendment a person’s voluntary consent in submitting evidence. The police may request that an individual against whom law enforcement has neither particularized suspicion nor probable cause submit a biological sample containing his or her DNA in a dragnet, so long as that individual is properly informed about the scope and the purpose of the request. When DNA is given voluntarily, it is considered a consent search. Consent by coercion, however subtle, is not voluntary consent. The Fourth Amendment of the Constitution was designed to protect people from a “police state” where a government becomes “powercentric” and personal privacy can be compromised at whim in a police investigation. Thus many of the core legal and ethical issues surrounding DNA dragnets hinge on the question whether the dragnet is truly voluntary.

Can DNA dragnets be truly consensual, or are they inherently coercive? A policeman who comes to someone’s home and asks a person (face-to-face) for a voluntary DNA sample has a more coercive effect and is more likely to draw a sample than if the request were made on local television or placed in a newspaper. The uniform worn and words used by the police soliciting the DNA can also affect how coercive it feels when one is asked to provide a sample. A policeman in uniform coming to a person’s door to collect donations for a “police benevolent association” feels more coercive than if the request were made by mail.

In pursuit of a serial rapist-murderer, police in Baton Rouge, Louisiana, undertook a DNA dragnet in 2002. They targeted men in southern Louisiana and asked them to provide a DNA sample in order to exclude themselves as suspects. Fifteen men, including Shannon Kohler, refused to give police a buccal swab (cheek saliva).¹⁴ Kohler claimed that police used coercive methods to get a sample from him, which allegedly included issuing threats to obtain a court warrant and to give his name to the press. The Baton Rouge Police Department obtained a court seizure warrant in November 2002 to force Kohler to submit a DNA sample. Kohler was subsequently cleared of the crimes.

Kohler filed suit against the Baton Rouge Police arguing that the seizure warrant lacked probable cause and was an invasion of his privacy. After he failed to obtain relief from the district court, on November 21, 2006, the Fifth Circuit Court of Appeals reversed the lower court and ruled that the DNA search warrant for Kohler lacked probable cause. To justify the warrant, police argued that probable cause was based on (1) two anonymous tips and (2) the fact that Kohler’s physical characteristics were consistent with certain aspects of the FBI profile of the perpetrator. The majority of the Fifth Circuit judges wrote:

These two traits are so generalized in nature that hundreds, if not thousands, of men in the Baton Rouge area could have possessed them, and they are, therefore, insufficient to warrant the belief that Kohler was the serial killer. . . . We conclude that the District Court erred in finding that the seizure warrant was supported by probable cause.¹⁵

When police investigators undertook a DNA sweep in 1999–2000 in Chicago, they were carefully advised against using intimidating tactics in communicating with potential donors of interest. The Chicago police used a consent form, which stated that the donors of DNA agreed that their samples “may be used for this investigation or any other investigation or any other legitimate law enforcement purpose.”¹⁷ Those whom the police targeted for a DNA sample were also told that they had the right to refuse the request. Thus it appears that the people approached by the police were sufficiently well informed about the use of their DNA. The police targeted a specific group of men to provide a DNA sample or to make an appointment at their own convenience. They were not told that they had to accompany the officer to the police station. Despite the apparent precautions taken by the police, there remains the question whether their approach was coercive. Jeffrey Grand notes, “In the context of the DNA dragnet, whether a donor is asked to accompany police to the station or is simply subject to a brief detention for field-testing, he still may reasonably feel that he is not free to terminate his encounter with the police.”¹⁸

Do consent procedures currently used in DNA dragnets provide sufficient information to individuals to allow them to make a reasonable decision about whether to provide their DNA? Procedures for obtaining consent for DNA collection have varied considerably from one DNA dragnet to the next. Some have relied on oral consent, others on written consent. In some cases no consent was obtained at all.

Do dragnet consent procedures inform individuals of the potential uses of their DNA? Some police departments present a potential contributor with a written consent form that states how their DNA will be used. The consent form might also describe whether the source of the DNA (cheek swab or blood sample) will be destroyed after the DNA profile is processed. In the absence of state laws to the contrary, some police departments have held on to the voluntarily provided DNA samples and have maintained the profiles in separate DNA databases when the profiles do not qualify to be entered into the state or federal CODIS data bank. States differ on whether the consent forms for voluntary DNA samples stipulate that the DNA profile shall be used exclusively in a specific investigation and for nothing else and whether the sample is removed from the database when the case is closed.

Should police be permitted to retain voluntarily submitted samples beyond the close of the investigation for which they were collected? Should police be allowed to access those samples and profiles for use in future investigations? Law-enforcement personnel have argued that they need to retain samples as evidence for situations in which a case is reopened in the future. But DNA dragnets are crime specific and are not meant to be established as a general data bank for “suspicionless suspects” in the event that someone might commit a crime at some time in the future. DNA databases created for use in future investigations have been created under the CODIS system and are bound by state and federal laws. The federal government does not allow the profiles obtained from a dragnet to be placed in CODIS. The retention of DNA samples outside the scope of the data-bank statutes raises serious concerns.

Florida law allows the state DNA database to hold volunteer samples, as well as those taken from those convicted of a crime. In a Miami, Florida, dragnet, where more than 120 Hispanic males were asked to submit DNA samples to exclude them as a suspect in a serial rape investigation, samples from the volunteers were not destroyed when police found the rapist.¹⁹ It has been reported that by 2003 Florida’s DNA database contained more than 5,800 voluntary samples.²⁰

David Frost, a 22-year-old who was staying with his parents at Yate during the Christmas holiday, was asked by police and agreed to give a DNA sample but failed to show up for the test. In August 1996, after Frost reported to police that he was leaving for South Africa, he became a prime suspect. The U.K. police arranged with South African authorities to obtain a DNA test from Frost, which matched the DNA taken from Smith’s body.²² The police reported that the likelihood of the match coming from another unrelated male was 1 in 35 million. On February 5, 1999, Frost pleaded guilty to the murder of Louise Smith. What remains of the 4,500 DNA samples collected by the police?

Should police be able to tell people that the only way they can clear themselves as a suspect is to provide a DNA sample? Is there language that could be used in a truly voluntary DNA dragnet that would not be coercive? According to Sepideh Esmaili, writing in the Kent Law Review, courts consider both objective and subjective factors in deciding whether duress was used by police in requesting a person’s DNA sample. Threatening individuals with a court order or threatening to drag their names through the media if they refuse to submit a DNA sample is a form of coercion and voids any consent.²³ Some constitutional scholars argue that the police cannot conduct a noncoercive dragnet of people’s DNA, and thus no dragnet should be conducted without a court warrant.²⁴

In the United Kingdom, where there is no comparable constitutional guarantee of privacy, as there is in the United States, mandatory DNA profiling is becoming increasingly commonplace. A serial gerontophile rapist known as the Minstead Rapist committed his first offense in 1992 in the South East London area of England. In March 2004 Operation Minstead detectives hand-delivered letters to hundreds of black men in South London, asking that they provide a DNA sample for elimination purposes. Volunteers were told that their DNA sample would be destroyed as soon as police confirmed that it failed to match the rapist’s DNA. On the basis of a visual description, 1,000 black men in South London were DNA profiled during a hunt for the serial rapist. However, 125 men initially refused to provide a sample, believing that it was discriminatory and breached their human rights. Police brought pressure to bear on those who refused, explaining that their behavior could be construed as suspicious. They also received intimidating letters from the police. Five were arrested, their DNA was taken, and then they were cleared.

Notwithstanding America’s civil liberties tradition, similar coercive methods have been reported in collecting DNA samples. For example, Mark Rothstein and Meghan Talbott have noted: “Although consent to participate [in a dragnet] is normally voluntary, such requests from law enforcement officers are inherently coercive. . . . In Oklahoma in 2001, people who refused to consent to DNA testing were served with search warrants and treated as suspects, thereby suffering public humiliation.”²⁵ In Louisiana, police requested DNA samples from nearly 1,000 men in the search for a serial killer. Those who refused to provide a sample were threatened that a court order would be issued to get a swab of their saliva.²⁶ When police targeted young African American males for voluntary DNA samples to solve a murder case many refused to be tested. By their mere refusal, they became suspects (see box 3.1).

BOX 3.1 Refusal to “Voluntarily” Submit DNA in a Dragnet

In 1994 police in Ann Arbor, Michigan, conducted an unsuccessful dragnet that included data-retention problems and racial profiling. Police asked more than 600 African American men to submit DNA samples during the investigation of a serial rapist. Detectives decided to target African American men on the basis of a vague description that the perpetrator of the underlying crime was black. Approximately 160 men “voluntarily” submitted DNA samples and were excluded from suspicion. More than 400 men refused and were not tested. The police chief in charge of the dragnet said that anyone who did not volunteer DNA became a suspect. The perpetrator of the crimes, who was not among those initially tested in the DNA sweep, was eventually caught while attacking a fourth woman. A class-action suit was filed by some of the 160 innocent men who “voluntarily” submitted samples in the search. One of the litigants alleges that he lost his job after detectives informed his coworkers that they wanted to interview him. Police had sought to retain the DNA samples for 30 years but agreed to destroy or return them and paid monetary damages to plaintiffs in the suit.

Source: Electronic Privacy Information Center, “Kohler v. Englade: The Unsuccessful Use of DNA Dragnets to Fight Crime,” http://www.epic.org/privacy/kohler (accessed October 28, 2007).

It is sometimes assumed that for voluntary DNA dragnets the only persons who refuse to comply are those who have something to hide regarding the investigation in question. However, this is not borne out from the experience police have had with such DNA sweeps. Many factors other than protecting one’s guilt may explain noncompliance with voluntary DNA submission.

Individuals who are approached for a DNA sample might be afraid that police will hold on to the sample even if the profile does not match the crime-scene DNA. They might feel stigmatized in knowing that their DNA profile and biological sample remain in a local or state database. They might feel generally that requesting their DNA is an unnecessary intrusion on the part of the government. Others might refuse to give a DNA sample because they believe that police might use their profile to investigate other crimes. In other words, their DNA will be subject to suspicionless searches without a time limit. Cases such as this have actually occurred. Police have on occasion excluded a suspect in one case and used his voluntary DNA sample to trawl the victim database for a cold hit. From the police perspective, the more DNA samples, the more cases will be solved. But there are also instances in which the match of DNA from secondary searches of nonsuspect samples yielded an exact match but did not solve the crime. Rather, the match from one rape case was from consensual sex of the cold-hit suspect with the victim before the rape.²⁷

Potential voluntary DNA donors might also refuse to participate in a voluntary dragnet because they understand that mistakes in DNA analysis can and have occurred and that their DNA profile might result in a false positive match with crime-scene evidence (see chapter 16). Finally, although people might be convinced that their DNA evidence would not match the crime-scene DNA, while trusting the analytic laboratories, they may be concerned that the profile will be used in a familial search (see chapter 4).

In Charlottesville, Virginia, police asked 197 African American men to submit to cheek swabs as part of a search for a serial rapist who struck six times between 1997 and 2003. Police chose the subjects on the basis of their resemblance to a composite sketch of the perpetrator or because they behaved “strangely” when approached about the case. About 5 percent (10 men) of the 197 men from whom DNA samples were requested refused to comply.²⁸ One of these men was Steven Turner, 27, a University of Virginia graduate student. Turner was stopped by police in August 2003 while he was riding his bike in a neighborhood near the university. He allegedly fit the police profile of a 6-foot black man in his early twenties with an athletic build and “unnaturally white, bulging eyes.”²⁹ Turner refused to give police a cheek swab for his DNA profile, even when two officers showed up at his home. Turner had a sense that his rights were being violated because this was a suspicionless search without a court warrant. He felt that he was being coerced to comply and that this practice was a form of racial profiling based on a vague description of the suspect. In response to significant opposition from the African American community, the police chief placed a hold on testing. Ultimately, the perpetrator was caught. He was African American, but he was neither in the criminal database nor in the group chosen for DNA swabbing.

Is it possible that DNA dragnets might become mandatory and a standard part of police investigation? Is it possible that law enforcement will move away from any consent at all in DNA searches? Could the legislature or the courts allow mandatory DNA sweeps without warrants?

Courts have traditionally protected individuals from searches when there is neither probable cause nor suspicion. There is a broad consensus among legal scholars that without an act of Congress “the general interest in crime control served by DNA dragnets is not strong enough to outweigh the even stronger interest of free persons to be free from forced DNA testing and to keep their genetic information private.”³⁰ One can only surmise whether the courts will issue DNA warrants when the prime suspects in a crime with DNA evidence consist of a dozen men, with no evidence other than their physical proximity to the crime scene.

On the other hand, searches in airports have become commonplace and do not require court warrants. Courts have referred to airport searches as an exception to the Fourth Amendment through a legal distinction called the “special-needs exception” where the government’s need in conducting the search is considered a “special need, beyond the normal needs of law enforcement.” Nations throughout the world have an overriding interest to protect their citizenry in air travel from terrorist activity or other human threats. Thus U.S. courts have developed this special need of airport searches as a justified exception to the Fourth Amendment’s protection from unreasonable searches, as long as the searches are not designed for general criminal investigation. It is possible that DNA dragnets could be employed in these sorts of situations, especially with advances in DNA technology that might allow for rapid DNA typing (see chapter 5).

the sole purpose of the DNA dragnet is that of criminal apprehension . . . the dragnet procedure could not be considered a search “beyond the needs of law enforcement.” Thus, the “special needs” exception is arguably inapplicable to the DNA dragnet. Thus, unless the government can demonstrate a compelling interest that outweighs the Fourth Amendment concerns of the individual, the collection of biological samples for DNA testing is in violation of the Fourth Amendment.³¹

Special-needs provisions for searches have been approved by the courts for administrative actions designed to prevent accidents, such as drug testing of railroad engineers, but have not been applied to crimes that have been committed. Once law enforcement is in search of a perpetrator, the Fourth Amendment of the Constitution applies in full force. Mandatory dragnets would be considered police and not administrative functions and therefore would require a warrant.

On the other hand, surreptitious DNA collection has been upheld in at least one state supreme court decision (see chapter 6). If the law continues to move in this direction, it seems more likely that known, mandatory DNA searches would be allowed when DNA collections that occur without consent or even knowledge that they are happening are considered lawful.

How effective are dragnets in catching criminals? According to a 2004 report issued by the Department of Criminal Justice at the University of Nebraska and conducted by Samuel Walker, a criminal justice professor, dragnets are entirely ineffective in solving crimes.³² As of 2008 there had been at least 20 DNA dragnets conducted throughout the United States since 1990. All the dragnets were prompted by unsolved murders and rape cases and included dragnets that took place in Miami; San Diego; Ann Arbor, Michigan; Cheverly, Maryland; Lawrence, Massachusetts; and Truro, Massachusetts. Only one of these dragnets resulted in the resolution of a crime.

Upon closer inspection the single successful dragnet was not much of a dragnet at all. The case involved the rape of a resident in a nursing home in Lawrence, Massachusetts, in 1988. The victim was a 24-year-old comatose patient who became pregnant from the rape and gave birth to a premature baby. Thus investigators requested DNA samples from each of the 25 employees who had access to the patient. One of those samples from a nurse’s assistant matched the DNA found in the rape victim. According to the University of Nebraska study, this was the only DNA dragnet out of 18 reported to have been carried out in the United States that resulted in the arrest and conviction of a perpetrator.³³ For each of the remaining situations, the case remained unsolved or was solved through other means.³⁴ It is important to note that the Lawrence dragnet was directed at workers in a nursing home, where the number of suspects was relatively small. According to Walker, because the crime was a sexual assault in a nursing home, and the requests for DNA samples were limited to employees known to have access to the victim, it was not a DNA “sweep,” as in the other cases that involved many more and entirely suspicionless individuals.³⁵ At best, it was a dragnet of very limited scope.

In the case of the Truro, Massachusetts dragnet, police began collecting DNA from the nearly 800 male residents of the Cape Cod community three years after the 2002 brutal murder of former fashion writer Christa Worthington. The DNA samples remained unanalyzed for months. Ultimately a DNA sample was found to match the DNA from the crime, but this sample had not been obtained as part of the dragnet. In fact, the DNA belonged to Christopher McCowen, a 33-year-old trash collector who made weekly visits to the victim’s home and was considered a possible suspect from early on in the investigation. When questioned, McCowen agreed to provide a DNA sample, but it took police two years to collect it and another year to process it. The cause for the delay in processing had been attributed to inadequate resources and a DNA testing backlog, no doubt exacerbated by the DNA dragnet.³⁸

Currently there are no uniform standards or best practices according to which law enforcement collects DNA on a voluntary basis. People in the United States who are asked for their DNA are not read a statement like the Miranda Clause that would assert their rights not to give up their DNA without a warrant. The Electronic Privacy Information Center (EPIC), a public interest research center located in Washington and focusing on civil liberties, issued the following list of best practices in its amicus brief on behalf of the Kohler litigation:³⁹

While the best practices issued by EPIC on DNA dragnets may not be sufficient if one considers DNA dragnets to be inherently coercive, they provide a sensible balance between police efforts to investigate a high-priority crime where all other leads have been exhausted and the protection of civil liberties of suspicionless individuals brought into a search by virtue of their geographical proximity to the crime.

The original use of dragnets in police investigations before forensic DNA involved a type of blitzkrieg sweep through an area in an effort to pick up a suspect before too much time elapsed that would afford the perpetrator of a crime the opportunity to escape police interrogation. Both spatial and temporal elements were critical in traditional dragnets.

For DNA dragnets, time plays a different role. There is no immediacy to the search. The potential evidence retrieved from a DNA search will not disappear after a certain time period. What the police want and need is a match of the crime-scene DNA with the DNA profile of a person who is within the geographical area where the crime was committed. DNA dragnets are not of much value when the perpetrator of a crime is traveling through an area or when the number of people brought under the dragnet search becomes very large. For example, a crime committed in a rest stop at an interstate highway would not lend itself to a dragnet of people in the area.

As was demonstrated by the Truro case, DNA dragnets can be highly inefficient, and too much emphasis on DNA can inadvertently turn police away from more traditional methods of criminal investigation. In the meantime, the costs to community trust in law enforcement can be high. On June 19, 2008, the American Civil Liberties Union (ACLU) of Massachusetts filed suit on behalf of approximately 100 of the men who had voluntarily provided DNA samples to the Truro police in 2002. In August 2008 Massachusetts State Police returned the biological sample of one of the men who volunteered his DNA. By the winter of 2008 the other samples collected by Truro police were still in the database and awaiting a court decision on the expungement of the profiles and the destruction of the biological samples.

Dragnets are an inefficient means for solving a crime because they involve solving crimes by exclusion. From 1995 to 2005 about 7,000 people were tested in DNA dragnets in the United States. In only one case was a suspect identified where he gave his DNA voluntarily, and the list of possible suspects in this case was sufficiently narrow to begin with. For a small fixed number of suspects, exclusion can work efficiently. When the dragnet targets hundreds and thousands of people, and many people refuse to submit, experience has shown that it is not an efficient way to solve the crime. Moreover, the areawide data banking of innocent persons’ DNA can undermine the willingness of individuals to cooperate and result in considerable hostility toward law enforcement. More broadly, the means by which police execute dragnets has been shown to be coercive, and there is little accountability, such as uniform standards of informed consent, to counteract this effect.

Requiring DNA from individuals picked up in a dragnet flies in the face of constitutional precedent that has protected suspicionless individuals from searches that are designed to solve crimes. Mass collections of DNA can have a chilling effect on society that could suppress constitutional speech and freedom of assembly. As one judge noted, a permanent national DNA database “could be used to repress dissent or, quite literally, to eliminate political opposition.”⁴³ People who know that they are in a database might hesitate to participate fully in civil society as activists. The creation of a database of innocents can be regarded as a silent way of suppressing dissent.