When Floyd Wagster Jr. received an unexpected phone call from a sheriff’s deputy in August 2002, he didn’t know he was about to be swept up in the search for a serial killer.
At the time, three women had been raped and murdered in and around Baton Rouge, La. And police had little to go on. They had found a bloody, size 10 or 11 shoeprint at the house of one of the victims. They had spoken to two eyewitnesses who saw a white man driving a white truck with the naked body of a white woman slumped in the passenger seat on the night of one of the murders. And they had the killer’s DNA.
As Wagster tells the story, the East Baton Rouge Parish, La., deputy who called him wasn’t specific about the reason. He assured Wagster that he was not in any trouble, but that he was wanted for questioning. Wagster told him that was OK, but that he wanted to talk to his lawyer before going to the station. He then tried reaching the lawyer, found that he was in court and left a message for him to call back.
An hour or so later, the same deputy called again, wanting to know if he had spoken to his lawyer yet. Wagster said he hadn’t, and left his house soon after to run a few errands. Here’s what Wagster says happened next:
Less than a half-mile from his house, another deputy stopped him and ordered him out of his red van. At that point, the deputy who had called him earlier pulled up, handcuffed him and told him he was being taken in for questioning. At the sheriff’s office in downtown Baton Rouge, Wagster was placed in an interrogation room. Then, Maj. Bud Connor, the chief of detectives, came in.
That’s when Wagster learned that the Baton Rouge Serial Killer Task Force had received an anonymous tip that he may have information regarding a rash of killings of area women. He vehemently denied any such knowledge, and he says he was never advised of his Miranda rights and was not allowed to contact his lawyer.
Wagster, who claims he secretly tape-recorded the entire interrogation (and has a transcript to prove it), says deputies repeatedly acknowledged they knew he wasn’t the killer, but insisted that they wanted a DNA sample from him anyway.
“You gonna give DNA,” he quotes Connor as telling him at one point.
“We’re gonna go get a court order to get it from you. How you want to handle that? You want the court order? Fine with me. I’ll light your ass up on the … news, too.”
Wagster, who was on probation for a marijuana possession charge at the time, says Connor also threatened to jail him and force him to take a drug test unless he provided deputies with the requested sample.
Wagster says he finally relented, but that he didn’t do so freely or voluntarily. “I didn’t feel like going through any more bull—,” says the 47-year-old drywall contractor. “And I did not want them to find my tape recorder.”
That tape recorder may come in handy now that Wagster has filed a federal class action suit against East Baton Rouge Parish Sheriff Elmer Litchfield, State Police Superintendent Terry Landry and Louisiana Attorney General Richard Ieyoub.
The suit alleges the sheriff’s department collected more than 1,200 DNA samples during the 10-month search for the serial killer. Many of those who gave samples matched an FBI profile of the killer or descriptions of a suspect from eyewitnesses. Others were mentioned in anonymous tips to a serial killer hotline.
The probe ended when an investigator, who was working on two seemingly unrelated killings, got a court-ordered DNA sample from Derrick Todd Lee. It implicated him in one of those killings as well as the six murders attributed to the serial killer. Lee has pleaded not guilty and is awaiting trial.
Critics say the Louisiana investigation highlights problems associated with DNA dragnets, in which police collect samples on a large scale from individuals who are not suspects, but merely live or work near the crime scene. These samples are used to create DNA profiles that are compared to the profile of the perpetrator. Even if the guilty party does not submit a sample, the dragnet may help police by narrowing the number of possible suspects.
Wagster’s suit, filed July 31 in U.S. District Court for the Middle District of Louisiana in Baton Rouge, is filed on behalf of those who gave DNA samples without written consent. The class does not include offenders who are required to give such samples under state law.
The suit asks a judge to do the following:
• Order the return or destruction of all DNA samples collected.
• Declare unconstitutional a Louisiana law that allows authorities to collect DNA samples from people accused of certain sexual and violent crimes.
• Award the plaintiffs compensatory and punitive damages for violation of their rights not to be subjected to unreasonable searches and seizures.
WHAT’S AT STAKE
“This is a very important case,” says Barry Scheck, one of Wagster’s lawyers and a professor at Yeshiva University’s Benjamin N. Cardozo School of Law. “There’s never been anything like this Louisiana situation.”
Depending on the outcome, Scheck says, the case could set a national legal standard for the collection and maintenance of DNA samples from people who have neither been arrested for nor convicted of any crime.
Scheck says he doesn’t think there is anything wrong with police collecting DNA samples from people voluntarily for the purpose of eliminating them as possible suspects. What’s wrong, he says, is police coercing people into giving them their DNA, misleading them about what they’re going to do with it, and then refusing to give it back once they have been eliminated as suspects. Wagster’s suit alleges the police did all those things in the course of the Baton Rouge serial killer investigation.
“They were about as heavy-handed as you could get,” Scheck says of the police, adding that such tactics will only make people reluctant to volunteer a DNA sample when they should.
“Protecting civil liberties is not inconsistent with law enforcement,” Scheck says. “In fact, it promotes it.”
Jim Boren, another of Wagster’s lawyers, says the case could determine when and how police can obtain DNA samples from large numbers of people, without court orders, based occasionally on anonymous tips, and what must be done with the samples once the crime has been solved.
“In short, it will determine the legitimacy of DNA dragnets,” he says. “Can the police obtain samples from anyone remotely suspected of being involved in a crime, without any rules or regulations governing the process?”
One aspect of the case may be on the verge of settlement, however. Under a tentative agreement—which still must be approved by a judge—between the plaintiff and the Louisiana State Police, the DNA profiles would not be maintained in any database and would never be used for any purpose other than the Baton Rouge serial killer investigation.
And at the conclusion of all criminal proceedings in the serial killer case, those who were swabbed could request that their DNA samples be returned or destroyed.
A spokeswoman for the serial killer task force didn’t return multiple calls for comment. A spokesman for the sheriff’s office referred all comment to its general counsel, Leu Anne Greco, who refused to discuss the Wagster case
But Greco says that only a few of the people from whom the task force requested a DNA sample refused to provide one voluntarily. “Most people … were only too happy to have themselves excluded as suspects,” she says.
A spokesman for the Louisiana State Police didn’t return several calls for comment.
Allan Pursnell, a spokesman for Ieyoub, says the attorney general’s office was not involved in the serial killer task force and had nothing to do with the DNA dragnet. But Pursnell is quick to point out that it was an investigator for the attorney general’s office who is credited with solving the serial killer case by requesting a DNA sample in another investigation.
DNA dragnets got their start in Europe, where such testing has become almost routine. The first, which was chronicled in Joseph Wambaugh’s book, The Blooding, was conducted in Leicester, England, in 1987. Following the rape and strangulation of two teenage girls, police sought voluntary blood samples from more than 4,500 area men. The killer was identified when he asked a friend to submit a DNA sample in his place.
The largest known DNA dragnet to date took place in Germany in 1998. More than 16,000 people were tested before police matched a local mechanic to the rape and murder of an 11-year-old girl.
In the United States, however, police have been slow to embrace the practice, at least in part, because of concerns over whether such mass samplings violate the Constitution’s limits on searches and seizures.
Still, at least 10 DNA dragnets have been conducted in this country since the early 1990s.
One of the first law enforcement agencies to experiment with the practice was the San Diego police department, which tested about 800 African-American men during the search for a serial killer who stabbed six to death in their homes in 1990. The killer refused to provide police with a sample but was eventually identified after he was arrested for an unrelated crime.
In 1994, police in Ann Arbor, Mich., obtained blood samples from 160 African-American men in the hunt for a serial rapist and murderer. That dragnet also failed to produce a suspect, but police eventually caught the rapist after he attacked another woman. After being cleared, one of the men who gave blood persuaded a trial judge to order the return of his DNA sample and profile. The Michigan Court of Appeals dismissed the police appeal on procedural grounds, and the state supreme court refused to hear the case. Shelton v. Ann Arbor Police Department, No. 107576 (1997).
In 1994 and 1995, police in suburban Miami tested more than 2,300 men in the search for a serial rapist who strangled six prostitutes and dumped their bodies along a street known as the Tamiami Trail. But the so-called Tamiami Strangler was eventually identified after neighbors found a prostitute bound and gagged in his apartment while he appeared in court on a shoplifting charge.
Large-scale dragnets have since been conducted in several other communities. However, only one of those reported dragnets has led directly to the identification of the perpetrator. In 1999, police in Lawrence, Mass., took blood samples from 33 employees of a nursing home where a comatose young woman on a life support system had been raped and impregnated. A nurse’s aide who was identified as the rapist through his DNA later pleaded guilty to the crime and was sentenced to 11 years in prison.
Before conducting a dragnet, investigators can look to what is already on file. All 50 states now have government-operated databanks containing the DNA profiles of known offenders. The FBI maintains a national databank of these profiles known as CODIS, for Combined DNA Indexing System, which includes a convicted offender index (containing profiles of offenders submitted by the states) and a forensic index (containing DNA profiles of evidence related to unsolved crimes).
Government databanks were initially limited to convicted violent or sex offenders. But 31 states now collect DNA from all convicted felons, according to the Tacoma, Wash., law firm of Smith Alling Lane, which follows developments in DNA policy. At least 23 states require such samples from people convicted of specified misdemeanors. And three states—Louisiana, Texas and Virginia—now require samples from certain arrestees.
At press time, Congress was considering legislation to expand CODIS to include DNA profiles from juvenile offenders and adult arrestees. The changes, contained in a bill that would authorize $755 million for DNA testing, were approved by the House of Representatives in early November. Supporters say the Senate is likely to approve a similar version of the measure this year.
For now, police have to rely on existing DNA databanks. And when those fail, advocates support the use of large-scale DNA sweeps. They contend the practice saves time and effort by quickly eliminating large numbers of potential suspects, leaving police free to concentrate on more promising leads. Because the samples are given freely, they say, the practice does not violate the Fourth Amendment’s ban on warrantless searches.
For Joshua Marquis, district attorney of Clatsop Coun- ty, Ore., DNA dragnets don’t pose a constitutional problem. Marquis, a member of the National District Attorneys Association’s board of directors, says the dragnets are no different than drunk driving roadblocks.
“Just as drunk driving roadblocks have been accepted as a legitimate way to allow law enforcement to catch people who put others at risk, the simple swabbing of a cheek to obtain a DNA sample is not an invasion of personal liberties,” Marquis says.
In a USA Today article, another advocate compares DNA sweeps to fingerprinting. John Farrell, then the chief of police in Prince George’s County, Md., investigated the rape and strangulation of a hospital administrator in 1998. He requested DNA samples from hundreds of men who worked at a hospital. When done correctly, he said, such widespread testing is effective, lawful and only minimally intrusive. “The analogy is to a burglary of a store, where you might fingerprint everyone who worked there or who had good reason to be there to compare against any prints the burglar might have left.”
But many criminal defense lawyers and civil libertarians decry the practice, which they say is overly broad and seldom, if ever, truly voluntary. They also question its effectiveness, and worry about what will happen to the DNA samples once the donors have been eliminated as suspects. They ask whether the use of those profiles in subsequent criminal investigations goes beyond the scope of the initial consent.
University of California at Davis law professor Edward Imwinkelried says the Fourth Amendment issue is likely to be raised in future cases if police start using DNA dragnets here in as widespread a fashion as they do in Europe. Some people inevitably will claim that police didn’t ask for their permission or blocked their exit or kept telling them they had a duty to help.
“You can add facts about what the police said and did that would convert what would be a voluntary contact into a Fourth Amendment intrusion,” he says. Joe Cook, executive director of the ACLU of Louisiana, also raises a Fifth Amendment issue. Cook cites reports in the press that indicate the Louisiana investigators either implied or expressly threatened certain individuals with a warrant and the release of their name to the public if they did not “voluntarily” comply.
Courts have found consent to be invalid when subject to duress or coercion, Cook says. Under such circumstances a person not in legal custody may have his Fifth Amendment right against self-incrimination violated. “If police get a DNA match in that manner, prosecution of the accused might be jeopardized,” he says.
Critics also ask what the government will do with the genetic information from such samples. William Thompson, a professor of criminology, law and society at the University of California at Irvine, says every state has a statute allowing for the creation of an offender databank, so there is a statutory scheme regulating the use of samples in such databanks.
But dragnets like the one in Baton Rouge create a separate set of samples that exist outside of a state’s regulatory scheme, and there is no comparable statute saying what the authorities can and cannot do with those samples. “If you turn over your DNA to see if you’re the perpetrator of one crime,” asks Thompson, “can [police] keep it to compare it with evidence of other crimes? Can they do medical testing on it?”
Wagster shares that concern, and that is why he wants his sample back. “This DNA is a genetic blueprint of my entire existence,” he says. “I don’t like them taking my genetic blueprint without a good reason.”
COURTS CONSIDER DNA DATABANKS
Last Oct. 2, the 9th U.S. Circuit Court of Appeals became the first appellate court in the country to strike down a law requiring parolees to provide blood samples for a DNA databank used to investigate crimes.
But on Jan. 5, the San Francisco-based appeals court announced that a majority of its nonrecused regular active judges had voted to set aside the October ruling and rehear the case before an 11-judge panel.
In the original decision, United States v. Kincade, 345 F.3d 1095, the 9th Circuit held that the collection of blood samples from parolees pursuant to the DNA Analysis Backlog Elimination Act of 2000 violated the Fourth Amendment ban on unreasonable searches and seizures.
The act requires federal inmates convicted of serious crimes and those on parole after serving sentences for serious crimes to give blood for the Combined DNA Index System, a national DNA databank maintained by the FBI.
The law was challenged by Thomas Cameron Kincade, who pleaded guilty to armed bank robbery in 1993 and was paroled from prison in 2000. In 2002, he refused a parole officer’s demand that he give blood for a DNA sample, contending that it violated his Fourth Amendment rights against unlawful search and seizure.
A federal judge in Los Angeles rejected Kincade’s constitutional claim and sentenced him to four months in jail for violating his probation, but stayed the sentence while he appealed.
The 9th Circuit reversed, saying the case involved “the most fundamental and traditional preserves of individual privacy, the human body.”
Forced blood extractions, Judge Stephen Reinhardt wrote for the 2-1 majority, “violate the Fourth Amendment because they constitute suspicionless searches with the objective of furthering law enforcement purposes.”
“Compulsory searches of the bodies of parolees such as Kincade,” Reinhardt continued, “require, at a minimum, reasonable suspicion.”
Judge Diarmuid F. O’Scannlain dissented, arguing that the majority should not have “blithely” dismissed a 1995 9th Circuit ruling that upheld a similar Oregon DNA collection law. He said that ruling, Rise v. Oregon, 59 F.3d 1556, concluded that extracting blood to solve crimes was reasonable and constitutional.
COMMERCE CLAUSE CHALLENGE
Another federal appeals court has since gone the other way. In United States v. Plotts, 347 F.3d 873, the Denver-based 10th U.S. Circuit Court of Appeals on Oct. 22 rejected a commerce clause challenge to the act, holding that the statute is a valid exercise of Congress’ power under the Constitution’s necessary and proper clause.
The court, in a 3-0 ruling by Chief Judge Deanell Reece Tacha, also stood by an earlier 10th Circuit decision turning back a Fourth Amendment challenge to the statute.
In that case, United States v. Kimler, 335 F.3d 1132, the court held last July 7 that the searches authorized by the statute are reasonable under the Fourth Amendment’s “special needs” doctrine, which allows suspicionless, warrantless searches if they serve special needs beyond the normal interest in general law enforcement.
Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles, declined to comment on the Kincade case.
But federal public defender Monica Knox, who represents Kincade, says the fact that the full court has agreed to rehear the case is not necessarily a sign that they disagree with the panel’s decision. “It’s only bad for me because I already won once and now I have to win again,” she says.
Georgetown University law professor Paul Rothstein notes that the 11-judge panel has yet to hear the merits of the case. But judging from the fact that the full court has agreed to rehear it, he says, the chances are pretty good that the panel will overturn the original decision.
“If the larger panel does indeed overrule the original decision, this pretty much gives a green light to a fairly important law enforcement tool, albeit at some expense to the privacy of some,” he says.
Of course, there is always a possibility that the U.S. Supreme Court would agree to look at the case, Rothstein says. But in that event, he says, the high court is likely to be more sympathetic to law enforcement interests than to parolee rights.
“My prediction would be that the Supreme Court would be unlikely to go against law enforcement on this issue,” he says.
Mark Hansen is a senior writer for the ABA Journal.
Mark Hansen is a senior writer for the ABA Journal.