Creative DNA collection raises ethical questions

updated 4:55 p.m. ET March 18, 2007

BUFFALO, N.Y. - When a 60-year-old man spat on the sidewalk, his DNA became as public as if he had been advertising it across his chest.

Police officers secretly following Leon Chatt last August collected the saliva — loaded with Chatt’s unique genetic makeup — to compare with DNA evidence from the scene of an old murder they believed he’d committed.

On Feb. 1, Chatt was charged in one of Buffalo’s oldest unsolved cases, the 1974 rape and stabbing of his wife’s stepsister, Barbara Lloyd.

While secretly collecting a suspect’s DNA may be an unorthodox approach to solving crimes, prosecutors say it crosses no legal boundaries — that when someone leaves their DNA in a public place via flakes of skin, strands of hair or saliva, for example, they give up any expectation of privacy.

But the practice has raised questions from Washington state to Florida, where similar collections are under scrutiny.

“If we felt it wasn’t proper and we didn’t have a strong legal foundation, we wouldn’t have done it,” Erie County District Attorney Frank Clark said, discussing another recent case involving secretly obtained DNA.

In that case, the smoking gun was tableware the suspect used during a night out with his wife. Undercover investigators had waited out Altemio Sanchez at the bar of a Buffalo restaurant one evening and moved in on his water glass and utensils after he’d gone.

Two days later, the 49-year-old factory worker and father of two was charged with being the elusive “Bike Path Rapist” believed responsible for the deaths of three women and rape of numerous others from the early 1980s through 2006.

Lawyers for Sanchez and Chatt say both men continue to profess their innocence. Both have pleaded not guilty to charges of second-degree murder and their cases are pending in the courts.

Friend of the cold case squad
DNA, which is unique to every person, has become a cold case squad’s best friend. Investigators can re-examine things like hair, blood, semen and carpet fibers from decades-old crime scenes and cross-reference the DNA with ever expanding databases kept by law enforcement.

“It’s one of the greatest tools that law enforcement has today,” said Dennis Richards, the Buffalo Police Department’s chief of detectives.

New York state last year underscored the value of DNA by tripling, to about 46 percent, the number of people convicted of crimes who must submit a sample to the state’s database.

To catch up on a backlog, Erie County in January conducted an unusual two-day DNA “blitz.” Hundreds of convicts who “owed” a sample were summoned to a downtown courthouse, where an assembly line of sorts was set up to swab their mouths.

Growing privacy concerns
But it is the so-called “abandoned” DNA like that collected from Sanchez and Chatt — and suspects elsewhere arrested based on discarded cigarettes or chewing gum — that concerns people like Elizabeth Joh. The University of California law professor believes it is time legislators consider regulating such collections out of concerns for privacy.

Right now, police rely on abandoned DNA when they lack enough evidence to obtain a court-ordered sample.

“If we look at this kind of evidence as abandoned, then it really permits the police to collect DNA from anyone — not just cold case issues — from anyone at any time and really for no good reason or any reason at all,” Joh said.

“That’s something that maybe sounds like a science fiction scenario — police running after people trying to get their DNA,” she said, “but we really don’t know where this could lead.”

Asked whether there should be boundaries on such collections, Richards said, “That’s one for the lawyers to argue in a court of law.”

Chatt’s attorney, John Jordan, said he would “absolutely” challenge the DNA evidence in his client’s case in court but declined to elaborate.

Prosecutors tend to view abandoned DNA as akin to trash, which courts have upheld as fair game for investigators, Joh said.

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