When it comes to collecting DNA from criminal offenders, California law is especially protective of juveniles.
While 2004’s Proposition 69 broadened police authority to collect DNA without a warrant, it put limits on when DNA can be collected from juveniles. Only if a youth has been found guilty of a felony or required to register as a sex offender can law enforcement obtain a DNA sample.
But the San Diego Police Department has found a way around state law. The department maintains its own database — one that’s not linked to state or federal DNA databases. According to department policy, as long as a DNA profile remains in the local database, officers can collect DNA from anyone for “investigative purposes.” The policy requires only that officers get a signed consent from the minor. It doesn’t require them to notify the minor’s parent or guardian until after the sample’s been taken.
A lawsuit filed Tuesday by the ACLU of San Diego and Imperial Counties challenges that policy, and argues that a juvenile is incapable of providing informed consent, especially if he or she is being coerced by law enforcement. The lawsuit also raises questions about which juveniles are being targeted by the policy and why.
It’s not the first time the ACLU has sued San Diego police over improper DNA collection. In 2013, the city agreed to pay a $35,000 settlement and destroy DNA samples police had collected without cause from the family of a parolee.
Experts I spoke to about the department’s policy were unaware of any other law enforcement agencies in California that collect DNA from juveniles in the field. They acknowledged a local database is a way to get around state rules, but said it also undermines the intent of the law’s strict limits. Even juveniles who admit their guilt aren’t necessarily required to provide a DNA sample, said Kevin Lapp, a Loyola Law School professor.
“If DNA collection isn’t permitted then it’s hard to justify street-stop collection from someone who is presumed innocent,” he said.
The recent case focuses on a 16-year-old, identified in the lawsuit by his initials, P.D. Around 3:30 p.m. on March 30, 2016, San Diego police detained P.D. and four friends as the group was leaving a basketball game at the Memorial Park rec center in Logan Heights. According to the complaint, police assumed the teens — all of whom were black — were gang members because some were wearing blue. P.D. was wearing a white T-shirt with blue sleeves, black jeans and red socks.
The officers were from the department’s gang suppression unit, and even though they determined that none of the boys had any gang affiliation or criminal record, they still detained them. The boys were handcuffed, patted down, had their pockets emptied and were told to sit on the rec center’s bleachers and be quiet. Police searched their backpacks and found an unloaded gun in P.D.’s bag. According to the complaint, the gun was registered to one of the boys’ fathers.
P.D. was placed in the back of a police car. The other boys were photographed and asked to sign forms to allow officers to collect DNA samples via a cheek swab. According to the lawsuit, one officer asked a detective at the scene if they were allowed to collect DNA without trying to contact the boys’ parents. The detective said yes.
After being photographed and swabbed, the boys were released and P.D. was taken to the police station. There, he was questioned for more than an hour, according to the filing. In a video of the interview, obtained by the ACLU, a detective tells P.D. that he “ain’t shit” and that the alternative high school he attended is “for people who fuck up.” According to the complaint, the detective “repeatedly reminded [P.D.] that he came from a broken home.”
ACLU senior staff attorney Bardis Vakili, who watched the video, said P.D. “remained polite and respectful” throughout the interrogation.
“If there’s anyone wondering why there’s a gulf in community trust between law enforcement and communities of color, just looking at the way law enforcement treats these children should shed some light on that,” Vakili said.
SDPD did not respond to a request for comment on the lawsuit.
Only after interrogating P.D. did police contact his mom, Jamie Wilson. Wilson said in an interview that phone records show she received the call at 7:33 p.m., four hours after her son was initially stopped.
P.D. was booked into juvenile hall and charged with carrying a concealed weapon. He remained there until April 8, when he was released to his mom and placed on house arrest. In June, his attorney, Philip Shapiro, filed a motion to suppress evidence gathered during the search of P.D.’s bag — the gun — arguing that police lacked probable cause to detain the boys and the search violated P.D.’s Fourth Amendment rights. According to the lawsuit, at a hearing on the motion in late June, police admitted they 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.”
The juvenile court judge granted P.D.’s motion to dismiss the case. According to the lawsuit, “The court had ‘a problem with the actual detention right off the bat of five people just walking in the park.’”
Wilson said it wasn’t the first time her son had been stopped by police and handcuffed for no reason other than walking down the street.
“After years of doing this, it does something to you,” she said, “to be told you’re a criminal over and over again — you internalize it.”
Vakili said police could have obtained a warrant for P.D.’s DNA if they felt it was essential to their case.
“There’s no reason why they had to do a swab out in the field like that,” he said. “You had him in custody, he’s not going anywhere, go get a warrant.”
The department’s own policy acknowledges this legal gray area. “Exigent circumstances” — situations where police don’t have time to secure a warrant — “will be virtually nonexistent in most cases because DNA … in humans does not change over time,” the policy says. The consent form is a way to get around this.
It’s unknown how many DNA samples San Diego police have collected from juveniles. In May, I asked the department for a total, as well as breakdowns of the number of DNA samples collected from juveniles by year and by race. A spokeswoman said the department doesn’t track that information.
Vakili said he finds that troubling as well as the fact that DNA samples remain in the database regardless of whether an individual is charged with a crime.
“There’s very little in terms of protection built into the policy,” he said. “Nothing stops the city from just maintaining this stuff indefinitely, other than the Constitution, I hope.”
The lawsuit asks that the department destroy the DNA sample, and all related records, collected from P.D. It also asks for a permanent injunction barring the department from collecting DNA from minors “without a judicial order, warrant, or parental consent.”