PUBLIC SAFETY

Should police take a DNA sample when making arrests?

Madeline Buckley
madeline.buckley@indystar.com

Had Damoine A. Wilcoxson never been arrested in Ohio, he might still be on the street in Indiana.

That's because Ohio, unlike Indiana, routinely collects DNA samples from people arrested on felony charges, even if they are not convicted.

Such a sample, collected in Ohio, led directly to Wilcoxson’s arrest this week on a murder charge.

Now a group of Indiana prosecutors, lawmakers and law enforcement officials are pointing to the Wilcoxson case as an example of how expanded DNA databases can help them corral violent offenders.

"I think this case ... proves that crimes can be solved and communities can be made safer if those who are arrested, at the time of the arrest, provide a DNA sample," Boone County Prosecutor Todd Meyer told IndyStar this week.

The crux of the issue is that both states had an opportunity to collect DNA from Wilcoxson, but only one did. Wilcoxson was arrested in Marion County in May 2015 and October 2014 in felony possession drug cases. He ultimately pleaded guilty to a misdemeanor. Because he wasn't convicted of a felony, his DNA sample was not entered into the federal database. That's the law in Indiana.

In Ohio, Wilcoxson was arrested in a robbery case and never convicted, but the law there allows the collection of DNA upon arrest.

The DNA sample from Ohio helped police link Wilcoxson to two October attacks on Indianapolis police stations, but also to another high-profile crime: the slaying of an elderly man outside of his Zionsville home. The state's forensic investigators believe the bullet fragments left at both scenes came from the same weapon.

Wilcoxson is now charged with murder in the shooting death of 82-year-old John Clements. He is a suspect in the recent police station shootings but has not been charged in those cases.

And Meyer and others are gearing up to change Indiana law during the January legislative session.

They may be in for a fight.

Laws such as the one in Ohio have been criticized — and challenged in court — by some who consider them too intrusive. Opponents have raised a number of questions. Is it an invasion of privacy to collect DNA samples from people who are arrested but never charged? Could the information, once gathered, be used for purposes other than law enforcement? Are the risks to personal privacy worthwhile if it helps corral a violent criminal?

Though the U.S. Supreme Court in 2013 ruled in a 5-4 decision that taking DNA upon arrest is constitutional, legislation in Indiana has failed in the past. Most recently, a bill introduced earlier this year was not granted a committee hearing.

Still, the co-authors of that bill — state Reps. B. Patrick Bauer, a Democrat, and Greg Steuerwald, a Republican — plan to reintroduce the bill. They are backed by the Indiana Prosecuting Attorneys Council, which has already sent a letter to House Speaker Brian Bosma and Indiana Senate leader David Long asking for their support.

"It's a great law enforcement tool," Steuerwald said of expanded DNA collection databases.

No different than fingerprints?

More than half of states have laws that allow police to take DNA from a suspect upon arrest, though some states have restrictions, such as limiting it to certain felony arrests, or only allowing it when a judge finds probable cause for the arrest.

The issue has federal support, as well. In 2003, a  22-year-old woman was raped and murdered in New Mexico. Investigators collected DNA from under the fingernails of Katie Sepich, which resulted in the arrest of her killer three years later. Her family has spoken out across the country urging states to enact DNA laws.

The case led to a federal law named in Sepich's honor. Signed by President Barack Obama in 2013, the law allows the federal government to award grants to states to implement laws that allow for DNA collection for people upon arrest.

The passing of such laws led to a flurry of judicial challenges across the country. The American Civil Liberties Union has opposed enhanced DNA collection laws, arguing in court challenges that private genetic and medical information could be collected and used without people's consent.

The case that eventually wound its way to the U.S. Supreme Court — Maryland v. King — centered on Alonzo King, a Maryland man who was arrested in 2009 for threatening a group of people with a shotgun. The Maryland DNA Collection Act allowed police to take a DNA swab from King's cheek, and investigators subsequently connected him to a 2003 unsolved rape case.

After King was convicted of rape, the Maryland Court of Appeals struck down portions of the law, arguing that the DNA swab violated his constitutional rights that protected him from unreasonable search and seizure.

The U.S. Supreme Court, though, upheld the law, citing safeguards that prevent the DNA from being used maliciously. It compared it to court rulings that allowed drug tests in schools when the samples students gave were only used to look for drugs, not pregnancy, or other health issues. It also noted that a cheek swab is a minimally invasive procedure.

"The use of DNA for identification is no different than matching an arrestee's face to a wanted poster of a previously unidentified suspect, or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee's fingerprints to those recovered from a crime scene," read the majority opinion, written by Justice Anthony Kennedy.

'What liberty does a person give up?'

​Yet many citizens still balk at the thought of a widespread, government-maintained DNA database, particularly as a standard of felony arrest for collection would ensnare many more people than the current standard of conviction.

In Indiana, an early attempt in 2013 to pass a DNA collection law was stymied not only by concerns about privacy, but also by the cost of storing and preserving swabs from every person arrested across the state.

"The storage was cost-prohibitive," said Larry Landis, executive director of the Indiana Public Defender's Council. Landis noted that the council also voiced concerns over whether there was a path to expunge the DNA from the system if the case was dismissed, and if the technology allowed for the comparison of enough DNA markers to avoid false matches.

The most recent iteration of the House bill includes language about removing DNA if an arrest results in an acquittal, dropped charges or no charges within 30 days. It also proposes allocating $500,000 in funding semi-annually. A bill was also proposed in the Senate this year that limited DNA swabs to arrests for burglary, residential entry, a crime of violence or a sex offense.

Thomas Washburne, an Indiana state representative who chairs the House Courts and Criminal Code Committee, which would have heard the bill, said there were too many bills and too little time for the bill to get a hearing this year. He said his committee may revisit it in the upcoming session.

"The broader concern is what liberty does a person give up yearly by being arrested?" Washburne said, noting some recent debates among lawmakers. "It encourages sloppy police work. You can … arrest someone to get their DNA."

Fran Watson, a law professor at Indiana University Robert H. McKinney School of Law in Indianapolis, has addressed the question in class.

Take the issue a little further beyond arrest.

She has asked classes: What if the government required a DNA sample for every baby born? At some point in the future, presumably police would be able to catch any rapist or murderer who left behind DNA. Would you want that, though?

"Most of my students say they are not OK with that," Watson said. "The response from citizens is often, 'I don't want the government to have my DNA.' "

Call IndyStar reporter Madeline Buckley at (317) 444-6083. Follow her on Twitter: @Mabuckley88.