Senior police officials had sought permission in the past to collect such samples, and had even approached Knesset committees about it, but were turned down after encountering public opposition and legal hurdles. Until January 2012, police had no legal means of collecting the DNA. Only the Israel Prison Service can legally collect the samples, but those it took were not the right kind to help police investigations.

Police then found a way of getting around the obstacles to collecting the samples. They did so using the fact that by entering the country illegally, the migrants were committing a security-related crime. This meant that the police were authorized to collect DNA samples from suspects in such a crime − the African migrants.

In 2010, the police opened cases against four migrants on a security-related offense, and in 2011, no such cases were opened. But Haaretz has learned that in 2012, 606 such cases of this type were opened − and police had collected DNA from all of these individuals. Samples are not taken from every migrant, nor are they taken from minors.

As far as is known, police have not solved any crimes as a result of such DNA sampling.

Human rights groups said that the decision by police to launch investigations arbitrarily constituted discrimination and was damaging to people who were required to provide a DNA sample. “The criminal process is meant to reach the truth and punish offenders who have been legally convicted. But in terms of asylum-seekers, police are making a different use entirely of the criminal proceeding,” said attorney Asaf Weitzen of the Hotline for Migrant Workers. Weitzen said police were “creating a new law and suiting it to a regime in which there is no longer a need for courts, legislators or public opinion.”

Haaretz has obtained police data indicating a rise of 61 percent from 2011 to 2012 in criminal files involving Sudanese and Eritrean nationals. According to the Population, Immigration and Border Authority, the migrant population from those two countries has grown by about 18 percent and stood at 50,000 people at the end of 2012. The rate of files opened against Sudanese and Eritreans is 44 per thousand, compared to 45 per thousand in the entire population.

Human rights groups say the figures do not necessarily show a rise in crime by Sudanese and Eritrean nationals, and cite increased enforcement and population growth as reasons for the additional investigations.

“Procedure involving infiltrators involved in criminal proceedings allows the police to accuse, convict and punish asylum-seekers based on evidence that is insufficient even to issue an indictment. That being the situation, of course there will be ‘growth’ in the number of offenses,” Weitzen said.

Attorney Lila Margalit of the Association of Civil Rights in Israel said: “The legal authority to take DNA samples from a suspect when not required for a specific investigation seriously invades the privacy, dignity, and right to a presumption of innocence.”

Yaniv Kubovich and Ilan Lior, Haaretz

The case goes back to April 10, 2009, when Maryland police arrested Alonzo King on assault charges. A DNA sample was collected, and four months later, it was found to match evidence from an unsolved rape, which led to King’s conviction for the crime. The case is precisely the sort of example given by proponents of broad DNA collection: DNA has the power to identify the guilty and exonerate the innocent.  But in King’s case, the Maryland Court of Appeals determined that arrestees have privacy expectations that outweigh the state’s crime-solving interest.

In its petition to the Supreme Court, Maryland argues that collecting DNA is no more invasive than its twentieth-century counterpart, the fingerprint. But King and opposing groups filing friend of the court, or amicus, briefs respond that unlike fingerprints, DNA is a trove of personal, medical and ancestral information. What’s more, DNA solves cases far less frequently than the state suggests. In 2011, Maryland police collected 10,666 DNA samples; only nineteen led to an arrest. The state’s interest is thus not identification but investigation—and the Court has never
permitted suspicionless searches of suspects without a warrant. If it does in King, there will be no principle limiting when our DNA may be collected in the name of fighting crime.

* * *

But beyond privacy concerns, there is another reason to reconsider DNA collection on arrest. Because people of color are disproportionately stopped, searched and arrested, they will disproportionately bear the burden of this genetic dragnet. And because DNA samples can be used to establish family relationships, it has the potential to widen the surveillance to entire communities.

Maryland’s petition argues in favor of further incorporating DNA “into established criminal procedure.” But this is precisely the danger. Many criminal procedures, no matter their original intent, disproportionately affect people of color. An amicus brief filed by Howard University provides three examples: the “war on drugs” and two of its symptoms, the New York Police Department’s “stop-and-frisk” policy, and pretextual traffic stops—in which police seize on minor violations for the chance to investigate “suspicious” drivers.

The latter examples show why putting the power of DNA collection in the hands of police is so risky. “The wider the discretion that law enforcement officers have in implementing policies to serve their crime control ends,” Howard’s brief argues, “the more likely that these policies will be used to harass and infringe upon the rights of people of color.” Maryland’s petition cites the National Research Council on the “objective standards of DNA comparison.” But we should not confuse the objectivity of how samples are tested with the subjectivity of how they are collected. DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems. A cautionary example: by 2008, Britain’s National Database stored DNA from 27 percent of the black population and 77 percent of young black males.

This is already happening here. By 2011, African-Americans made up 40 percent of the Combined DNA Index System (CODIS), according to Jeremy Gruber, executive director of the Council for Responsible Genetics. Established by the DNA Identification Act in 1994, CODIS is used by the FBI to store and search DNA profiles collected by federal, state and local law enforcement. When exact matches cannot be found for an unknown sample, many states resort to partial matches, using different markers to track down potential family members.

Because African-Americans are significantly overrepresented in CODIS, it is possible to use the database to identify up to 17 percent of the country’s entire African-American population, researchers at Duke University’s Center for Genome Ethics, Law and Policy found in 2011. Although only four states explicitly permit familial searches, the ACLU has found that nineteen have used a partial match to connect an unknown sample with a potential relative of someone in CODIS—even though fifteen of those states prohibit using the database for this purpose. In California, which permits familial searching, an “initial candidate list” of up to 168 people is created. That list is then narrowed and nonrelatives removed. A potential relative who remains on the list becomes vulnerable to police investigation. This is why Howard University’s brief calls these efforts a “‘probable cause’ generator.” 

Once a person is in the database, it can be hard to get out. According to the National Institute of Justice, only nine of the twenty-eight states that collect DNA from arrestees expunge the samples automatically if the person is not convicted. But even in these cases, the procedure is not straightforward. In Maryland, a sample can be expunged only when a charge is filed. What happens if a charge is never filed? In such cases, the Electronic Frontier Foundation points out in its amicus brief, “the arrestee must take the effort to get the sample expunged.” And in some states, such as California and Ohio, there is no right to counsel for expungement proceedings. California arrestees, if not charged, must wait until a statute of limitations expires before they may initiate the expungement process. The ACLU calculates that 19 percent of California felony arrestees in 2011—55,768 people—were never charged with a crime.

The Court is expected to hand down a decision in King before summer. How it will rule is difficult to predict. While it may turn, as usual, on Justice Anthony Kennedy, the alignment may be unusual. When Maryland’s chief deputy attorney general, Katherine Winfree, recited the number of convictions won through DNA matches, Justice Antonin Scalia fired back, “If you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.” On the other hand, Justice Stephen Breyer pushed back against King’s attorney, saying DNA tests are “no more intrusive” than fingerprints but “much more accurate.”

Forensic DNA collection, as a modern method, reveals old truths about how we criminalize entire populations. In a racially biased system, DNA collection on arrest creates a racial dragnet. But that bias becomes invisible when the data are considered neutral. When one group is overrepresented, whether in statistics or a database, its members become coded as criminals—and clearly in need of additional surveillance. If the Court permits DNA collection upon arrest, law enforcement may solve some crimes, but only as it tracks a wider and wider pool of innocent people.

Jason Silverstein, The Nation

Senator Tick Segerblom – Chair

Senator Ruben J. Kihuen – Vice Chair

Nevada Senate Judiciary Committee

401 S. Carson Street, Room 2121
Carson City, NV 89701-4747

RE: SB 243

Dear Senators,

We are very concerned about SB 243, which would allow for the first time the taking of DNA from anyone arrested but not yet convicted of a crime in Nevada. We stand in strong opposition to such proposed legislation.

The use of DNA profiling in criminal investigations can bring benefits to society by helping to solve crimes and assisting in the enforcement of the rule of law. However, DNA farming and warehousing of the sort contemplated by SB 243 is not a legitimate means of identifying individuals who have been merely arrested but nether tried nor convicted of any crime.

Unlike other established forms of identification such as fingerprints, DNA analysis is a window into an individual’s medical history as well as that of his or her entire family. Furthermore it can be used for a wider range of surveillance methods, from familial searches to DNA-based profiling. Considering the immense weight of information that DNA carries, allowing law enforcement to seize an individual’s DNA for no other reason than that they are under arrest, is to give law enforcement uncontrolled and unprecedented access to the private lives of the citizens of Nevada.

This is particularly so, because the collection of DNA upon arrest is not for the purposes of identification of an individual. The individual has already been identified at the time DNA is collected. Rather, the taking of DNA upon arrest is to investigate individuals for crimes unrelated to the crime for which they were even arrested. Because only a fraction of those who are arrested are ultimately charged and convicted, however, this practice necessarily will permit the government to collect DNA from and conduct DNA based surveillance on innocent Nevada citizens. Adding innocent individuals to DNA databases will not solve crimes.

That any bill in Nevada would sanction taking DNA from innocent persons is disturbing, but the practice visits a special and severe harm upon minorities. Members of minority groups are arrested in disproportionate numbers, and a disproportionate percentage of innocent arrestees are therefore likely to be minorities. As a result, many DNA profiles of innocent minorities will be continuously searched as part of law enforcement investigations that could include cold hit searches, familial searches, and DNA-based racial profiling.

Across the country, forensic DNA labs have had problems with cross-contamination of samples, mislabeling, misinterpretation of samples and in some cases outright fraud. The expansion of DNA collection practices has also increased the statistical probability for false matches and error, which can occur by chance or through poor laboratory practice and cause terrible miscarriages of justice. Collecting the DNA from innocent individuals upon arrest will necessarily subject them to these rarely mentioned but very real harms.

Finally, law enforcement agencies in Nevada are already burdened with limited resources and straining under a backlog created by current DNA collection and database practices. Collecting the DNA of a large new class of innocent individuals will only serve to hinder law enforcement’s capacity to investigate and prosecute crimes.

We urge you to reconsider SB 243.

Sincerely,

Jeremy Gruber

President

Council for Responsible Genetics

Hosey’s lawyers, Kristina Wildeveld and Dayvid Figler, said their client told police that he was the driver and that he has accepted responsibility.

By seeking the DNA of the passengers, Wildeveld said she now questions police whether have evidence suggesting someone else was driving and suggested the search warrant shows mismanagement of the case by investigators.

But prosecutors and police said the DNA would remove any doubt that Hosey was at the wheel if his lawyers suggest otherwise.

The move was “just to lock down where everyone was seated in the vehicle” and the DNA would not be used for any other purpose, prosecutor Eric Bauman said.

Hosey’s lawyers have held that investigators initially did not realize he was the driver and tested one of the passengers, Aklilu Atanaw, 24. The confusion occurred because both were thrown from the car.

Wildeveld also questioned the validity of a blood test showing Hosey’s blood alcohol level at 0.087 about 45 minutes after the crash. That test was not taken by authorities, she said, but instead by medical personnel and could be tainted and inadmissible.

A District Court judge would have to rule on that issue at a later date.

Police reports show Hosey’s blood alcohol level in police-administered tests was 0.06 percent two hours after the crash and 0.05 percent three hours after the crash. Both are below the state’s legal limit.

Hosey was found to have THC, the principal active ingredient in marijuana, in his system.

Sgt. Richard Strader, who oversees the department’s fatal accident detail, said he would not comment on whether police initially drew blood from the wrong person “since it is an active investigation.”

THE TEST

Wildeveld said Hosey waived his right to a preliminary hearing on Friday to spare everyone involved from having to “relive that morning.” He will be arraigned in District Court on Oct. 31.

Three of Hosey’s passengers, Tamesgen Adam, 22, Maarig Tewolde, 26, and Wendim Fisenar, 31, were subpoenaed to appear in court for the preliminary hearing. They were met by police who took their DNA swabs. Atanaw was not in court.

Figler said “the shenanigans” by police violated the passengers’ constitutional rights because they are not accused of a crime.

The passengers signed a consent form for the DNA test after police asked them for permission. The search warrant wasn’t available to the public late Friday.

“It was just in case there’s any chance Hosey would say, ‘Hey, it wasn’t me driving. It was this other guy,’ ” Strader said. “People tend to change their stories. All we’re doing is our job as investigators to have a rock-solid case.

“Obviously we work closely with the DA’s office. This just eliminates any doubt. You know, to check off all the boxes.”

Wildeveld called the move “highly unusual.”

THE CRASH

According to his arrest report, Hosey told police that before the crash, he drank only one beer with friends at an Ethiopian bar near the bus stop at Spring Mountain Road and Decatur Boulevard.

Police said the 2001 Monte Carlo was traveling at a high speed when it went airborne at the intersection and slammed into the crowded bus stop at about 6:30 a.m. on Sept. 13.

Gerber Hernan Ayala-Tomasino Jr., 24, Johnni Lee Garner, 49, Margoth Gonzalez, 65, and Hyon Cooley, 47, were killed.

Hosey remains at the Clark County Detention Center on $4 million bail.

Francis McCabe and Mike Blasky, Las Vegas Review Journal