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Thursday, February 7, 2008

Daytona Beach Cops Use Serial Killer as Excuse to take and record the DNA of Drivers

DAYTONA BEACH - Police officers in Daytona Beach are swabbing the mouths of persons of interests during traffic stops with special DNA kits in the hunt for an elusive serial killer.

According to a Local 6 report, a profiler said the serial killer is likely clean cut and probably has a wife or girlfriend.

Daytona Beach police Chief, Mike Chitwood said detectives have the killer’s DNA. “Genetically, we know who he is,” Chitwood said. “We have DNA evidence from the murder scenes — so, we got that. That is never going to go away. And, sooner or later, we will match the DNA to the physical person and bring closure to everything that is going on.”

Agents are using the DNA kits to collect as much DNA as possible during traffic stops and special operations in hopes on making a match. This controversial move might subject the beleaguered City of Daytona Beach to serious financial liability on invasion of privacy grounds and abuse of powers under Color of Law and other violations of the United States Constitution's Bill of Rights.

Daytona Beach has been inundated by many corruption complaints as a result of abuse of powers by the City Commission. Several criminal complaints against Daytona Beach City Commissioners remain unprosecuted by the State Attorney's office, headed by State Attorney John Tanner. Tanner and Daytona Beach City Commissioners in the criminal complaints share some of the same political campaign contributors.

Local 6 showed agents stopping a person of interest from Canada, who gave his DNA to officers on the street using the DNA kit.

"They get cuffed, we're going after DNA," the chief said. Last year, Daytona Beach police arrested 11,000 people. "DNA is going to replace fingerprints soon. Whether we're doing it now for the serial-killer investigation or whatever . . . DNA is going to be useful as a tool."

The DNA kits are also being used in prostitution stings in the area. Chitwood said over time, modern technology will lead to the killer. “I can tell you that we are working really, really hard,” Chitwood said. “I can tell you that there are a lot of things going on behind the scenes.”

There are many questions outstanding on these procedures... What happens to the DNA information collected on those thousands of innocent people that have nothing to do with the crime being investigated?

Other disturbing questions... Wouldn't the heightened privacy interest in one's bodily integrity that prevent routine strip searches incident to arrest after traffic violations would apply also to render routine DNA extraction of those arrested for traffic offenses also be unconstitutional ?

No matter the widespread corruption in Daytona Beach City Hall and how much control their benefactors have over the local investigative agencies. Sooner or later these abuses of power will awaken Federal scrutiny and then the City of Daytona Beach will really have a problem at hand.

In the training video by the Police Department on how to swab suspects' mouths for DNA samples, the training officer describes how to do the procedure and asks the suspect to sign a consent form only after the swab. That's not legal. The suspect must give consent first; otherwise the swab violates the suspect's rights.

The training officer in the video committed another blunder. "If the subject refuses the form," he says, "note on the form that they've refused, go ahead and tag the evidence anyway." There ought to have been no evidence to start with if the subject refused to sign the form.

After The News-Journal reported the training video's errors, Daytona Beach police Chief Mike Chitwood conceded that those aspects of the video were a mistake.

Watch the Daytona Beach Police Department DNA Swab Tutorial:

Constitutional Issues at Play...

Taking a DNA sample using a cheek swab is a Fourth Amendment search that would normally require a warrant. See Kohler v. Englade, 470 F.3d 1104 (5th Cir. 2006). It certainly looks like the police don't have warrants here. The question then becomes if some exception to the warrant requirement applies to make the cheek swab reasonable. It may be that the officers are only asking targets for consent to give up a DNA sample. If that's the case, the swabs are constitutional under the consent exception. It also may be that the officers are only getting cheek swabs when they arrest someone. If that's right, the DNA samples are very probably constitutional under the search incident to arrest exception.

On the other hand, if they aren't waiting until they arrest targets; aren't making the tests voluntary; and don't have specific warrants, then these swabs are very likely unconstitutional. (There are some possible issues of exigent circumstances or special needs, but these are hard to prove)

See the Local6 Article.

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