DNA Taken by Deception On Trial in Murder Cases
We have previously discussed the use of forensic genealogy to solve cold cases and how this new investigative technique is on the rise with law-enforcement. However, It is now of concern that, in several cases now before the courts, these techniques are being used in conjunction with DNA that was taken deceptively, which is a serious Fourth Amendment violation, i.e. an unconstitutional search and seizure.
Lying To Suspect’s Mother To Deceptively Collect Her DNA
Take one case that occurred here in Orlando two years ago, where police initially used programs like ancestry.com and 23andMe to the target a suspect in a murder investigation and then approached the mother of that suspect and asked her if she would consent to providing them with a DNA sample so that they could identify a potential relative who had been found deceased, which was a lie. The police were actually looking for a link for evidence to arrest her son, their suspect in the murder, who is now facing trial due to this DNA evidence that was collected completely deceptively.
Stealing DNA Off Of Garbage Without A Warrant
Take another case that has garnered news headlines of late and also involves a murder charge: The prosecution’s evidence in the case is currently being challenged due to police taking DNA from the suspect’s garbage without first obtaining a warrant. Police used the genealogy techniques to create a family tree to locate their suspect connected to a crime scene from 1981, and then took the garbage from that suspect’s residence and sent it to the crime lab, which then removed DNA from the garbage (without a warrant) and tested it.
Questionable Techniques, Concerns Surrounding Probable Cause
There is no question that the increased use of investigative genetic genealogy to find people with links to DNA left at crime scenes has left police trying to confirm the connection by taking people’s DNA through questionable means. What is also of concern in these cases is whether police had sufficient evidence to form probable cause in the first place.
In addition, there is no indication in these cases that the police even attempted to obtain a warrant, nor that exigent circumstances existed to justify any warrantless action. The only precedent that exists for police to lie to a suspect is after a suspect has voluntarily and knowingly waived the right to remain silent. Consent to be searched by deception is not valid consent and, in fact, DNA information in our blood, saliva, and urine has always been protected from a seizure by the Fourth Amendment, requiring a warrant or exigent circumstances.
DNA Receives the Highest Protection Under the Fourth Amendment
It remains to be seen what role this deceptively-obtained DNA evidence will play in these trials and, as a result, in future criminal defense trials. Taking DNA from private citizens without a warrant and through deceit is an unconstitutional invasion of privacy, where information taken from one’s body receives even greater Fourth Amendment protection than one’s home. In fact, the Florida Supreme Court has only approved police taking saliva samples by deception from a defendant who was already in custody pursuant to existing probable cause.
If You’ve Been Charged With A Crime, Contact The Very Best In Florida Criminal Defense Representation
If you or a loved one has been charged with a crime and suspect that evidence was gathered against you as a result of police misconduct and in violation of your rights, contact the Orlando criminal lawyers at the Baez Law Firm for the very best in criminal defense representation to ensure that your rights are protected.