DNA collection in Dakota County faces likely legal challenge

Dakota County's decision to resume collecting DNA samples from those charged but not convicted of some violent crimes is likely to face a further legal challenge.

The Minnesota Legislature passed a law in 2005 allowing this sort of DNA collection, although a 2006 decision in the state Court of Appeals declared the practice unconstitutional. But a recent U.S. Supreme Court decision on a similar Maryland law found that collecting data before conviction was allowable under the U.S. Constitution.

Privacy protection activists and advocates for violent crime victims are closely watching the Dakota County move. With seemingly contradictory decisions at the state court of appeals and the U.S. Supreme Court, both sides predict the issue of whether Minnesota allows this level of DNA collection will likely be settled in yet another court case.

Program to launch in Dakota County

Dakota County officials announced earlier in the week that they planned to once again start collecting DNA samples from those charged but not yet convicted of violent felonies like sexual assaults, robberies and physical assaults, as the Star Tribune reported.

Dakota County would be the first in the state to resume that sort of testing following a 2006 legal challenge.

Dakota County Sheriff Tim Leslie said he started to ponder reviving DNA collection during a meeting at the Minnesota Bureau of Criminal Apprehension about the Innocence Project, which seeks to free prisoners wrongly convicted of crimes, partly through use of DNA evidence.

"We use DNA to free people who are innocent," Leslie said. "Where are we at with collection to find the guilty?"

The state already allows DNA collection of those convicted of violent crimes. DNA samples can also already be obtained during a criminal investigation with a judge's approval. The samples are obtained through a cheek swab, and are then uploaded into the national Combined DNA Index System (CODIS) and compared to results from crime scenes and suspects across the country.

The major change to Dakota County's program is that DNA samples will now also come from those who have not yet been convicted, although state law requires that the DNA information be erased from the database if the person charged is found not guilty.

Leslie said an examination of last year's numbers in the county found that the new practice would have resulted in about 375 additional DNA collections last year. The department is setting up a system to collect the DNA and should be ready to start within two or three weeks, Leslie said.

"We don't want any more victims out there, if you're the victim of a violent crime, it's hard to work, it's hard to get back to your life again," Leslie said. "We want to limit that as much as possible by identifying the people who are criminals out there and making sure that we hold them accountable for the charges and prior crimes they've committed."

Legal challenges expected

The Minnesota Court of Appeals ruled that Minnesota's 2005 law allowing collection of DNA from someone not yet convicted was unconstitutional because it violated a person's right to be free from unlawful searches under both the U.S. and Minnesota constitutions.

That decision killed the program across the state. But in 2013, the U.S. Supreme Court ruled on a case involving a similar Maryland law, deciding by a narrow margin that is constitutional.

Leslie was advised about the legality of resuming the DNA collection program by Dakota County Attorney James Backstrom, who said his research shows that the state Court of Appeals decision was "effectively overruled" by the U.S. Supreme Court's decision.

"The collection of DNA from suspects, as the U.S. Supreme Court notes, is not overly intrusive," Backstrom said. "It's very similar to collecting a fingerprint."

DNA Saves, a group that promotes the collection of DNA information, estimates that about 28 states allow collection before conviction. Backstrom said the spread of these sort of laws, and failure of most legal challenges to them, shows their importance in protecting people from violent criminals.

"We want to get to the truth, that's what DNA is all about," Backstrom said. "DNA can certainly exonerate individuals as well as hold accountable those who have broken the law and committed a crime."

But Teresa Nelson, legal director for the ACLU of Minnesota, said collecting data from people not yet convicted of crimes violates the legal principle that someone is innocent until proven guilty.

"The notion that simply because one is accused of an offense like burglary, that DNA evidence will match you to other crimes, offends that notion of our presumption of innocence," Nelson said.

Nelson calls the Dakota County effort a policing shortcut, due to the fact that DNA can already be obtained before conviction with a judge's order. Although the state law behind the Dakota County program requires the DNA to be removed from the national database once a defendant is declared not guilty, the DNA sample could still be compared to other samples in the national database in the meantime.

"There's no limit in what happens to DNA in the interim," Nelson said. "When a person is facing charges and fighting those charges, there's no limit to what happens to the DNA during that time period."

From a purely legal perspective, Nelson said, the U.S. Constitution provides the minimum amount of protection from unlawful searches, so a U.S. Supreme Court ruling factoring only the federal constitution doesn't automatically apply to the state constitution.

"The Minnesota Constitution and state constitutions are free to provide greater protections than the U.S. constitution," Nelson said. "The U.S. Supreme Court cannot overrule a state court decision based on state constitutional grounds."

A legal challenge would likely need to be brought by a defendant who refused to submit to the DNA test, Nelson said. If the program were challenged, Backstrom said the county is "ready and willing to litigate the matter in front of the Minnesota Supreme Court."

Counties watch closely

Minnesota's largest counties are closely watching the new program in Dakota County.

A spokesperson for the Hennepin County Sheriff's Office said the department has been considering reviving DNA collection since the U.S. Supreme Court's decision on the Maryland law was issued, but that "there would be a public announcement before any changes to current practice are implemented in Hennepin County."

The Ramsey County Sheriff's Office and Ramsey County Attorney issued a joint statement saying they've "been working together to determine processes that improve our capability to apprehend perpetrators and provide justice for victims of crime." The county agencies said they appreciate Dakota County's "leadership" in this area.

The Minnesota Bureau of Criminal Apprehension would be responsible for testing the DNA samples and submitting them to the national database. Spokesperson Jill Oliveira said in an email response that the agency is capable of handling the additional DNA samples when Dakota County begins to submit them.

The agency handled 7,399 DNA samples from across the state last year. She said those samples matched to DNA results in the database that aided 764 criminal cases. It takes an average of 38 days for each sample to be processed and entered into the database.

If other counties around the state also begin collecting DNA samples from those not yet convicted, Oliveira said the agency would "reassess and adjust."

Jayann Sepich started the New Mexico-based DNA Saves group after her daughter was raped and murdered in 2003. A federal law supported by her organization offers some funding to states that expand DNA collection.

Sepich has previously advocated for the law in Minnesota, and said she's been in touch with Minnesota lawmakers this week.

Although there are some exceptions like Vermont, she said most DNA collection programs have withstood legal challenges. She admits that Minnesota finds itself in a very "unique position" because of the court rulings, and expects that the program will again face a legal challenge.