Last month, undercover detectives removed the trash from outside a 57-year-old paralegal’s home in Sioux Falls, South Dakota, in the hope of finding her DNA. The police were led to Theresa Bentaas’ house by a new investigative technique that combines direct-to-consumer genetic testing and genealogical records. They believed they were close to solving a crime that had haunted the city for 38 years: a newborn left to die in a freezing roadside ditch. According to court documents, the detectives sent beer cans, water bottles and cigarette butts to a state crime lab, where analysts extracted DNA that they said might belong to the baby’s mother.
The baby died years before DNA became a crime-solving tool. However, a detective, hoping to use new DNA analysis methods to find a new lead, arranged for the body to be disinterred. But at the time, the baby’s DNA profile wasn’t closely related to any profiles in the state’s crime database.
Last year, police turned to investigative genetic genealogy, which seeks DNA links outside of crime databases. Investigators built a family tree that pointed them to Bentaas.
A detective then followed up with a search warrant to obtain a DNA sample directly from Bentaas. Bentaas then admitted to leaving the baby in the ditch in February 1981 after secretly giving birth, saying she’d been “young and stupid” and scared. The DNA swab revealed her as the baby’s likely mother and she was arrested her murder. Now, Bentaas is fighting the murder charge by saying police should not have taken DNA from her garbage without a warrant.
“People do not have a privacy interest in the things they throw in the trash, but they definitely have privacy interest in their DNA that is on those items”, Bentaas’ lawyer, Clint Sargent, said in an interview. “And there’s nothing a free person can do to not deposit DNA on the stuff they deal with every day. ”
Methods of collecting DNA under scrutiny
The practice of going through a potential suspect’s garbage for evidence is not new. But it is facing new scrutiny from civil liberties groups who see danger in law enforcement’s unchecked power to obtain people’s DNA without them knowing about it. The tactic has grown more frequent with the increased use of investigative genetic genealogy, which relies on DNA and ancestry records to find people with links to DNA left at a crime scene.
“Without protections, every one of us is vulnerable to having our DNA secretly tested and scrutinized by police without judicial oversight”, said Nathan Freed Wessler, an attorney with the American Civil Liberties Union (ACLU), who specializes in technology and privacy.
Extracting and sequencing a DNA sample found on an item should first go to a judge for a warrant. Not doing that violates the Fourth Amendment of the US Constitution, said the ACLU, along with the Electronic Frontier Foundation, a digital rights non-profit organization.
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