Courts & Crime

If police try to take DNA from your kid, do they need your consent first?

Imagine your son or daughter is hanging out with friends, unaware a crime scene is unfolding a few blocks away. The police stop them and frisk them, then tell your child and other minors they are free to go — if they consent to providing DNA samples. Your kid complies. The police swab the inside of his or her mouth, and — unbeknownst to you — your family’s DNA ends up in a law enforcement database.

Across the country, this scenario is becoming more common as police agencies make DNA collection a routine practice during traffic stops and certain investigations. Adult suspects are the main targets of these “DNA dragnets,” but some end up sweeping up teenagers.

Most states have few or no restrictions on the ability of local law enforcement to collect DNA from minors. But that is starting to change. Last week, California Gov. Jerry Brown signed legislation that requires police in that state to obtain either judicial approval or consent from a parent or guardian before collecting DNA from minors during street stops.

The California law was a response to a high-profile case of San Diego police allegedly targeting African-American youth for DNA collection. Privacy advocates say similar laws are needed elsewhere.

“Kids are more susceptible to the coercive nature of police, so it’s important to parents (that they) have a role in making these decisions,” said Jamie L. Williams, a staff attorney with the Electronic Frontier Foundation, a civil liberties group that supported the California legislation. “Kids are so young they probably don’t even think about having their DNA in a database, which has implications for their entire family.”

DNA is a powerful crime-fighting tool, and investigators say the expansion of law enforcement DNA databases has helped them crack numerous cold cases. Less attention has been paid to the privacy consequences of including juveniles in these databases, particularly minors who have committed no crimes or been arrested for relatively minor offenses.

In 2016, ProPublica revealed that police in Florida, Connecticut, Pennsylvania and North Carolina had been collecting DNA from adults and juveniles not charged with — or even suspected of — of a crime. The investigative reporting web site described the practice as “stop-and spit,” a variation on “stop-and-frisk.”

Like most states, Florida has no law prohibiting police from requesting DNA from bystanders. While adults and minors can legally refuse a police request to submit to DNA testing, many youths may not realize they have that right, said Jackie Azis, a staff lawyer with the American Civil Liberties Union in Miami.

“That is what is happening here. Minors are feeling the pressure of a law enforcement officer requesting this, without realizing they have the right to say no,” said Azis. “They don’t know the law and they are obviously very susceptible to the influence of a police officer.”

In California, voters in 2004 approved Proposition 69, a ballot measure that allowed law enforcement to collect DNA from all felons and people arrested for certain crimes. The law included protections for juveniles — ensuring that the state’s DNA database would only include DNA from minors implicated in serious crimes.

Proposition 69, however, did not regulate the DNA databases compiled by local police agencies, including that in San Diego. Police in that city, since at least 2009, have been routinely collecting DNA from juveniles who consent to it during “stop and frisk” policing, according to a federal lawsuit the ACLU of San Diego filed against the city in 2017.

That case involves a teen named “P.D.,” who was 16 years old in 2016, when San Diego gang unit officers stopped him and four other African-American boys. According to the lawsuit and subsequent reporting by Voice of San Diego, officers stopped the five teens because they thought they were wearing clothing associated with a street gang.

The five boys had no criminal record, but the police handcuffed them, patted them down and searched their bags. Police found an unloaded gun in P.D.’s bag, registered to a father of one of the other boys.

The other boys were told they could quickly be released if they signed consent forms allowing police to take samples of their DNA. Police booked P.D. on a charge of carrying a concealed weapon and collected his DNA. A juvenile court judge later dismissed this charge amid questions about probable cause for the search.

In its 2017 suit against the police department, the ACLU alleges that P.D. and the other other boys had been stopped and DNA-profiled as part of a department policy aimed at evading the juvenile protections of Proposition 69.

The ACLU backed up this claim with a 2009 San Diego Police Department memo it unearthed, which states: “Law enforcement personnel can still collect biological samples from adults and juveniles, if they are for an investigative purpose to be held in the Department’s local databank and not for the submission to a state level DNA database.”

The suit, filed on behalf of P.D.’s mother, Jamie Wilson, argues that juveniles are incapable of providing informed consent for DNA collection. It also infers that San Diego police are targeting African-American youth for DNA collection, a claim the city has disputed..

To some extent, that litigation has now been overtaken by state legislation, AB 1584, which Brown signed into law on Sept. 26. The legislation, by Assemblywoman Lorena Gonzalez Fletcher (D-San Diego) forbids police from collecting DNA from minors on the street without a judicial order or consent of the child’s parent, guardian or attorney.

In cases where a minor and parent agrees to DNA collection, the new law also obligates the police agency to expunge the DNA information from its database if the minor no longer remains a suspect after two years.

The California Police Chiefs Association came out in opposition to the bill, arguing that AB 1584 would “restrict law enforcement from collecting samples from victims who are also minors.” It also could complicate investigations in which a minor was a victim and a parent was a possible suspect, the association said.

But supporters note the new law includes exemptions in which parental consent would not be required in some circumstances, such as cases involving “a juvenile victim or suspected perpetrator of a sexual assault.”

Williams, of the Electronic Frontier Foundation, say supporters of the bill worked with the California Department of Justice to ensure it wouldn’t interfere with future criminals investigations. The intent, she said, was to ensure that the genetic identify of innocent kids doesn’t end up in government databases in perpetuity.

“This is pretty straight-forward protection for kids,” she said. “It could be a model for other states.”

Stuart Leavenworth: 202-383-6070, @sleavenworth
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