Can Police Take a Juvenile’s DNA for ‘Investigative Purposes’?

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Jamie Wilson

After Jamie Wilson’s son was arrested, police collected a DNA sample from him without Wilson’s permission. Photo by Jamie Scott Lytle/Voice of San Diego

A bill introduced Tuesday by California Assemblywoman Lorena Gonzalez Fletcher targets a San Diego Police Department policy that lets officers collect DNA from minors without the knowledge or consent of a parent or guardian.

The policy, privacy rights advocates argue, doesn’t jibe with state law, which strictly limits when police can obtain a DNA sample from a minor.

Absent a warrant or court order, only minors who’ve been found guilty of a felony or sexual offense must provide a sample. The San Diego Police Department (SDPD), though, believes it can collect DNA from a minor for “investigative purposes” — and without parental notification or consent — as long as the sample remains in a local database that isn’t linked to state or federal DNA databases.

Gonzalez Fletcher’s bill would require police to obtain a court order, search warrant, or the written consent of both the minor and the minor’s parent or guardian before DNA can be collected.

Voice of San Diego’s reporting prompted the bill, Gonzalez said, after a story about a group of black teens who were detained by police after a basketball game at the Memorial Park rec center, which is in Gonzalez Fletcher’s district.

Police searched the boys and swabbed each of their mouths for DNA after the search turned up an unloaded gun in one of the boy’s duffel bags. The gun was registered to another boy’s father.

Prosecutors charged one of the boys, referred to in court records as “P.D.,” with possessing a firearm. But a juvenile court tossed the case after officers admitted they lacked probable cause to search P.D.’s bag and had stopped the boys only because they were “black juveniles, some of whom were wearing blue, walking through a park in southeast San Diego on a particular day.”

Prior to his arrest, P.D. had no criminal record and had never been involved with a gang. None of the boys he was with had a criminal record or gang affiliation.

Gonzalez Fletcher said she thought about her own teenage son, who hangs out at the rec center.

“Our kids are good, or sometimes they’re not so good,” she said. “But you don’t think about, ‘Oh by simply wearing a blue sweatshirt and walking from the Memorial pool to the parking lot, he’s putting himself in a position where police can come and ask for a DNA swab.’”

Protecting the Privacy of Minors

She sees the bill as part of a larger push to protect the rights of minors during interactions with law enforcement. She pointed to a law passed last year, SB 395, that bars police from asking a child 15 or younger to waive his Miranda rights.

“I’ve been thinking a lot about the ways in which we haven’t protected our children when it comes to privacy,” she said. “Of course, it likely happens in over-policed communities like mine the most, and kids who are black and brown the most.”

Gonzalez Fletcher said from what she’s heard from other legislators, the San Diego Police Department’s DNA collection policy appears to be unique to San Diego.

“It seems like most jurisdictions, in fact, don’t do this,” she said. “But that doesn’t mean they couldn’t.”

The Assembly’s public safety committee will vote on the bill, AB 1584, this week. Gonzalez Fletcher said she’s not anticipating opposition.

The ACLU of San Diego and Imperial Counties is also challenging the department’s policy through a lawsuit stemming from the Memorial Park incident. In court filings, the ACLU is arguing that the policy “contains no protections to ensure a child’s consent is given knowingly and voluntarily” and “permits officers to obtain a minor’s consent in the same manner that they obtain an adult’s consent.”

It’s unknown how many DNA samples San Diego police have collected from juveniles. A department spokeswoman said they don’t track that information.

Bardis Valkili, the lead attorney in the ACLU lawsuit, said his organization hasn’t yet taken a formal position on AB 1584, since they only just found out about it last week.

“We’re obviously concerned about the issue of seizing DNA from minors,” he said. “Any legislation to address this issue is something we’ll be taking a strong interest in.”

The Crime Report is pleased to reprint this story, first published by Voice of San Diego, a partner in the Institute for Nonprofit News network. Sign up for VOSD’s newsletters here. Kelly Davis is a freelance journalist who focuses on criminal justice and social issues. A former John Jay Crime Reporting fellow, she has contributed previously to The Crime Report. Follow her on Twitter @kellylynndavis or send an email to kellydaviswrites@gmail.com. Readers’ comments are welcome.

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