Imagine that your son or daughter is hanging out with friends, unaware a crime is unfolding a few blocks away. The police stop them and frisk them, and then tell your child and other minors they are free to go _ if they consent to providing DNA samples. Your teenager complies. The police swab the inside of his or her mouth, and _ unbeknownst to you _ your family's DNA ends up in a law enforcement database.
Across the country, this scenario is becoming more common as police agencies make DNA collection a routine practice during traffic stops and some investigations. Adult suspects are the main targets of these "DNA dragnets," but some end up sweeping up teenagers.
Most states have few or no restrictions on the ability of local law enforcement to collect DNA from minors. But that is starting to change. Last week, California Gov. Jerry Brown signed legislation that requires police in that state to obtain either judicial approval or consent from a parent or guardian before collecting DNA from minors during street stops.
The California law was a response to case in which San Diego police allegedly targeted African-American young people for DNA collection. Privacy advocates say similar laws are needed elsewhere.
"Kids are more susceptible to the coercive nature of police, so it's important to parents (that they) have a role in making these decisions," said Jamie L. Williams, a staff attorney with the Electronic Frontier Foundation, a civil liberties group that supported the California legislation. "Kids are so young they probably don't even think about having their DNA in a database, which has implications for their entire family."
DNA is a powerful crime-fighting tool, and investigators say the expansion of law enforcement DNA databases has helped them crack numerous cold cases. Less attention has been paid to the privacy consequences of including juveniles in the databases, particularly minors who have committed no crimes or have been arrested for relatively minor offenses.
In 2016, ProPublica revealed that police in Florida, Connecticut, Pennsylvania and North Carolina had been collecting DNA from adults and juveniles not charged with _ or even suspected of _ crimes. The investigative reporting website described the practice as "stop-and spit," a variation on "stop-and-frisk."
Like most states, Florida has no law prohibiting police from requesting DNA from bystanders. While adults and minors can legally refuse a police request to submit to DNA testing, many young people may not realize they have that right, said Jackie Azis, a staff lawyer with the American Civil Liberties Union in Miami.
"That is what is happening here. Minors are feeling the pressure of a law enforcement officer requesting this, without realizing they have the right to say no," Azis said. "They don't know the law and they are obviously very susceptible to the influence of a police officer."
In California, voters in 2004 approved Proposition 69, a ballot measure that allowed law enforcement to collect DNA from all felons and people arrested for certain crimes. The law included protections for juveniles _ ensuring that the state's DNA database would include DNA only from minors implicated in serious crimes.
Proposition 69, however, did not regulate the DNA databases compiled by local police agencies. Police in San Diego, since at least 2009, have been routinely collecting DNA from juveniles who consent to it during "stop and frisk" policing, according to a federal lawsuit the ACLU of San Diego filed against the city in 2017.
That case involves a teenager, "P.D.," who was 16 years old in 2016, when San Diego gang unit officers stopped him and four other African-American boys. According to the lawsuit and subsequent reporting by Voice of San Diego, officers stopped the five teenagers because they thought they were wearing clothing associated with a street gang.
The five boys had no criminal records, but the police handcuffed them, patted them down and searched their bags. Police found an unloaded gun in P.D.'s bag, registered to a father of one of the other boys.
The other boys were told they could quickly be released if they signed consent forms allowing police to take samples of their DNA. Police booked P.D. on a charge of carrying a concealed weapon and collected his DNA. (With questions about probably cause for the search, a juvenile court judge dismissed the charge.)
In its 2017 suit against the police department, the ACLU alleges that P.D. and the other boys had been stopped and DNA-profiled as part of a department policy aimed at evading the juvenile protections of Proposition 69.
The ACLU backed up this claim with a 2009 San Diego Police Department memo that says: "Law enforcement personnel can still collect biological samples from adults and juveniles, if they are for an investigative purpose to be held in the Department's local databank and not for the submission to a state level DNA database."
The suit, filed on behalf of P.D.'s mother, Jamie Wilson, argues that juveniles are incapable of providing informed consent for DNA collection. It also infers that San Diego police are targeting African-Americans for DNA collection, a claim the city has disputed..
To some extent, that litigation has now been overtaken by state legislation that Brown signed into law on Sept. 26. The legislation forbids police from collecting DNA from minors on the street without a judicial order or consent of the child's parent, guardian or attorney.
In cases where a minor and parent agrees to DNA collection, the new law also obligates the police agency to delete the DNA information from its database if the minor no longer remains a suspect after two years.
The California Police Chiefs Association opposed the bill, arguing that it would "restrict law enforcement from collecting samples from victims who are also minors." It also could complicate investigations in which a minor was a victim and a parent was a possible suspect, the association said.
Supporters note that the new law includes exemptions in which parental consent would not be required in some circumstances, such as cases involving "a juvenile victim or suspected perpetrator of a sexual assault."
