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ACLU sues Dakota County sheriff over DNA collection

Dakota County Sheriff Tim Leslie said he and County Attorney James Backstrom plan to "vigorously defend" his department's practice of DNA sample collection in a lawsuit the American Civil Liberties Union of Minnesota filed in April 2017. Photo by Katrina Styx.

The American Civil Liberties Union of Minnesota filed suit against Dakota County Sheriff Tim Leslie to prevent DNA sample collections from a Hastings man facing assault charges.

The suit was filed April 28 on behalf of 68-year-old John Emerson, who faced a second-degree assault with a dangerous weapon charge after his January 2016 arrest in Dakota County.

Leslie said DNA collection is an important tool for identifying people accused of violent crimes, but the suit argues the practice is unconstitutional.

"Our DNA is our most personal information," John Gordon, ACLU-MN interim legal director, said in a statement. "Adding it to law-enforcement databases violates our privacy, encourages intrusive government surveillance, blurs the line between guilt and innocence, and makes us more vulnerable to hacking and identity theft."

Dakota is the only Minnesota county that collects DNA before convictions.

The county cites 2005 legislation requiring law enforcement to collect DNA samples from adults and juveniles arrested for certain violent crimes.

The law can be applied before a conviction.

A statement from the county said that Leslie and County Attorney James Backstrom intend to "vigorously defend this important law in court."

"This is an important law which aids in the identification of individuals arrested for serious felonies who are housed within our jails and who are released back into our communities pending resolution of their criminal charges," Leslie said in the statement.

Although a 2006 Minnesota Court of Appeals ruling determined the law was unconstitutional, it has not been repealed.

Minnesota's First Judicial District Court granted a motion from Emerson during his first court appearance in January 2016 that would bar the sheriff's office from collecting DNA samples from Emerson before a conviction.

The state Court of Appeals denied a February 2016 petition from Leslie to restrain the district court's approval.

But the Minnesota Supreme Court reversed the decision in January of this year, ruling that Emerson's challenge of the county's processes should be handled in a civil court.

Dakota County shelved the DNA collection for nearly a decade after the appeals court found it unconstitutional.

The practice resumed in 2015, when Backstrom authored an opinion based on a 2013 U.S. Supreme Court ruling on a Maryland case in which the court found a "substantially similar" law to Minnesota's unconstitutional.

Backstrom said this decision overruled the 2006 decision that found the law unconstitutional.

"Contrary to the contention of ACLU-MN, we also do not believe this important statute is in violation of Minnesota's constitutional protections," he said in a statement.

Peter Farrell, an attorney working with the ACLU, disagrees.

The sheriff, Farrell said, does not have the authority to disregard Minnesota Court of Appeals decisions, "and even if he did, the Minnesota Constitution provides heightened protections against unreasonable searches and seizures."

"Those who have been charged with a crime are presumed innocent and they should not have to provide a DNA sample — which contains private genetic information — to the government absent a warrant supported by probable cause," Farrell said.

Developing methods

Dakota County collects DNA samples using a mouth swab within the first 48 hours following an arrest.

Once someone is booked into the jail, a judge conducts a judicial review for probable cause. If the judge determines there are charges for certain felony crimes, they will issue judicial probable cause, at which point the sample can be collected.

Leslie said that although his department primarily uses the samples to confirm someone's identity upon booking, they offer more reliable and scientific information than older methods such as fingerprinting or eye witnesses.

"DNA is what's getting people off of death row," Leslie said. "There are a lot of people that are in prison and were in death row because of eyewitness identification, which is now proven to be one of the weakest forms of identification."

Unlike fingerprints, Leslie said, DNA samples are removed from the legal system if someone is not convicted.

"It's really a safeguard for society to use the best technology and biology tools that we can to make sure that we're convicting and arresting the right people," he said.

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