Kohler v. Englade
The Unsuccessful Use of DNA Dragnets to Fight Crime
- Federal Appeals Court Finds that Police Lacked Probable Cause for DNA Warrant. In a challenge to a dragnet search in which the DNA samples of more than 600 individuals were collected by the Baton Rouge police department, the Fifth Circuit Court of Appeals has reversed a lower court and held (pdf) that the DNA search warrant lacked probable cause. The Court rejected the government's claim that it should consider a vague FBI profile to support the warrant application. EPIC submitted a "friend of the court" brief (pdf) arguing that warrantless, suspicionless DNA dragnets are unconstitutional and ineffective. (Nov. 21, 2006)
- 5th Circuit to Hear DNA Dragnet Appeal. The Fifth Circuit Court of Appeals will be hearing oral arguments in Kohler v. Englade on September 7. EPIC has filed a "friend of the court" brief highlighting the ineffectiveness of DNA dragnets, as well as the constitutional violations they create. The brief also recommends best practices to safeguard Fourth Amendment interests. EPIC Executive Director Marc Rotenberg will be arguing before the court in support of Kohler's position. (Aug. 31, 2006)
- EPIC Brief Supports DNA Privacy. EPIC has submitted an amicus brief (pdf) in Kohler v. Englade, a case in which police identified a man, later cleared, as a suspect in a serial rape-murder investigation. They compelled him to provide a DNA sample after he refused when the police cast a huge DNA dragnet, gathering samples from more than 1,200 men. EPIC argued that the constitution protects a person's privacy interest in his DNA and explained that such dragnets have failed repeatedly to identify perpetrators. (Oct. 12, 2005)
In 2002, police initiated a DNA dragnet in Baton Rouge, Louisiana. Police targeted men in southern Louisiana and asked each of them to provide a DNA sample for analysis in order to determine if he was the serial rapist-murderer that authorities were seeking. By 2003, police had taken DNA samples from more than 1,200 men in what at that time was the largest dragnet in U.S. history. At least 15 men, including Shannon Kohler, declined to let police take a DNA sample. In November 2002, the Baton Rouge Police Department obtained a seizure warrant to force Mr. Kohler to submit his DNA sample for the investigation. Mr. Kohler was identified by the police and news media as a suspect in the highly publicized search for a serial rapist-murderer. The police later cleared Mr. Kohler as a suspect in the investigation.
Mr. Kohler filed a Section 1983 claim (pdf) in the Middle District of Louisiana alleging that the seizure warrant used to obtain his DNA lacked the required probable cause. He has asked for his DNA profile to be removed from any state or federal database and has requested damages for the invasion of his privacy in violation of the Fourth Amendment. In February 2005, the District Court dismissed (pdf) Mr. Kohler's claim on a Motion for Summary Judgment, finding that police had probable cause based on two anonymous tips (a 1982 burglary conviction, Mr. Kohler's place of employment in 1991) and the fact that Mr. Kohler met "certain elements of an FBI profile," which the Court characterized as "so broad and vague that it cast a net of suspicion over thousands of citizens."
The Court rejected (pdf) Mr. Kohler's request for a new trial on the issues. Mr. Kohler has filed an appeal with the Fifth Circuit Court of Appeals. EPIC has written an amicus brief (pdf) supporting his case.
On September 7, 2006, the Fifth Circuit Court of Appeals in New Orleans, Louisiana heard arguments in an appeal challenging the use of DNA dragnets in finding suspects. Executive Director Marc Rotenberg argued EPIC's position before the court.
On November 21, 2006, the Fifth Circuit Court of Appeals reversed the lower court and held that the DNA search warrant lacked probable cause. In February 2005, a federal district court ruled against Mr. Kohler, saying that police had probable cause based on two anonymous tips and the fact that Mr. Kohler met "certain elements of an FBI profile," which the court itself characterized as "so broad and vague that it cast a net of suspicion over thousands of citizens." The Fifth Circuit Court of Appeals reversed this decision and rejected the government's claim that it should consider a vague FBI profile to support the warrant application.
About the factors that provided the basis for the warrant, the Fifth Circuit said, "These two traits are so generalized in nature that hundreds, if not thousands, of men in the Baton Rouge area could have possessed them, and they are, therefore, insufficient to warrant the belief that Kohler was the serial killer. . . . Moreover, the cases in which profile factors have been used to support a finding of probable cause have involved a greater correlation between the profile and the suspect and far more specific evidence linking the suspect to the crime being investigated. Accordingly, we conclude that the district court erred in finding that the seizure warrant was supported by probable cause."
DNA Dragnets Ensnare Thousands of Innocent People, But Fail to Find Their Intended Targets. DNA dragnets are used by police to gather DNA evidence from individuals in an attempt to identify perpetrators of violent or serial crimes. At least 20 dragnets have conducted in the United States over the past 15 years in cities and regions including Truro, Massachusetts; Chicago, Illinois; Miami, Florida; Prince George's County, Maryland; and Oklahoma City, Oklahoma. In the course of these dragnets, more than 5,000 people have had their DNA gathered by police. However, an examination of dragnets such as the one that occurred in this case shows that this investigative technique has failed repeatedly to identify the intended targets of investigations, but DNA dragnets compromised the privacy rights of thousands of innocent people.
These DNA dragnets have substantial problems associated with racial profiling, coercion, and data retention. In 1994, police in Ann Arbor, Michigan, conducted an unsuccessful dragnet that included data retention problems and racial profiling. Police asked more than 600 African-American men to submit DNA samples during the investigation of a serial rapist. Detectives decided to target African-American men based on a vague description that the perpetrator of the underlying crime was black. Approximately 160 men "voluntarily" submitted DNA samples and were excluded from suspicion. More than 400 men refused and were not tested. The police chief in charge of the dragnet said that anyone who did not volunteer DNA became a suspect. The perpetrator of the crimes, who was not among those initially tested in the DNA sweep, was eventually caught while attacking a fourth woman. A class action suit was filed by some of the innocent 160 men who "voluntarily" submitted samples in the search. One of the litigants alleges he lost his job after detectives informed his co-workers that they wanted to interview him. Police had sought to retain lab records of the DNA samples for 30 years, but agreed to destroy or return DNA samples and paid monetary damages to plaintiffs in the suit.
In another case in Miami, Florida, DNA evidence was gathered in a rape case, but was not destroyed after the perpetrator was found. The data retained from a man who voluntarily submitted a sample was later used to arrest and charge him in an unrelated rape that occurred in 1996. Officials cited the arrest as an example of how DNA databanks help authorities catch rapists. Unfortunately, the police did not consult the victim of the 1996 rape before charging Jorge Garcia. She exonerated Mr. Garcia, explaining that they had consensual sex shortly before a stranger raped her, which caused the crime lab to incorrectly identify the DNA sample of Mr. Garcia as a sample left by the rapist. Three days after Mr. Garcia's arrest, the police dismissed the charges against him and released him from jail. Traditional police work, not DNA dragnets and databanks, is more likely to identify criminals.
The Constitution Protects a Person's Privacy Interest in His DNA. The search to obtain DNA raises privacy concerns more significant than the search of a vehicle, of a house, or even a person's pockets because DNA reveals the most intimate details about a person, "including susceptibility to particular diseases, legitimacy of birth, and perhaps predispositions to certain behaviors and sexual orientation." The Supreme Court has made clear that biological materials that contain DNA are protected by the Constitution under the Fourth Amendment. Mr. Kohler, a free person asked to provide a sample in the course of a DNA dragnet, enjoys the full protection of the Fourth Amendment and a reasonable expectation of privacy.
The method used by police in a DNA dragnet and the nature of DNA evidence leads to uninformed, unintelligent, and potentially coerced consent, which may violate the Fourth Amendment. Individuals who are asked to give samples in DNA dragnets are often unaware of their right to refuse. Individuals who provide DNA during a dragnet may also not know that the sample can be retained for unrelated future uses. They may not understand that the police can use the sample for purposes unrelated to the investigation in which it was collected. This may produce incriminating evidence in an unrelated investigation, as in the case of Jorge Garcia, who was wrongfully arrested by police in Miami, Florida, and later exonerated by the victim.
EPIC Recommends the Use of Best Practices in DNA Dragnets to Ensure Constitutional Searches. DNA dragnets should only be used when all other investigative avenues have been exhausted. The scope of a dragnet should be narrowly tailored to individuals who match a description of a perpetrator or had access to a victim. Police should inform individuals that they may refuse to volunteer a DNA sample, and should not use a refusal as the sole basis for subjecting individuals to additional scrutiny or legal action. Any sample that clears an individual should be made available to the person who provided the sample. Finally, the police should protect the privacy of any individual who gives a DNA sample during a dragnet or exercises the right not to provide a sample voluntarily. The use of these best practices would ensure that police conducting DNA dragnets do not violate the Fourth Amendment rights of individuals.
5th Circuit Court of Appeals
- Ruling Denying Motion for New Trial (pdf) (Apr. 15, 2005)
- Kohler's Response to Defendants' Opposition to New Trial (pdf) (Mar. 16, 2005)
- Defendants' Response to Kohler's Motion for New Trial (pdf) (Mar. 1, 2005)
- Kohler's Motion for New Trial (pdf) (Feb. 18, 2005)
- Ruling Granting Defendants' Motion for Summary Judgment (pdf) (Feb. 1, 2005)
- Kohler's Opposition to Motion for Summary Judgment (pdf) (Nov. 19, 2004)
- Defendants' Memorandum in Support of Motion for Summary Judgment (pdf) (Sept. 30, 2004)
- Defendants' Answer (pdf) (Jan. 21, 2004)
- Kohler's Complaint (pdf)
- A Lingering Mystery on The Cape, Newsweek (Apr. 25, 2005)
- Police in Charlottesville Suspend 'DNA Dragnet', Washington Post (Apr. 15, 2005)
- One-Time BTK Suspect Wants DNA Destroyed, ABC News (Mar. 21, 2005)
- To Try to Net Killer, Police Ask a Small Town's Men for DNA, NY Times (Jan. 10, 2005)
- DNA Dragnet, 60 Minutes, CBS News (Sept. 12, 2004)
- Police Chief Won't Apologize For DNA Tests, KETV 7 (Omaha) (June 29, 2004)
- Judge extends protection of DNA, The Advocate (Baton Rouge) (April 3, 2004)
- 'Segregating' DNA key to agreement in lawsuit, The Advocate (Baton Rouge) (Dec. 5, 2003)
- Plaintiff: DNA cases similar, The Advocate (Baton Rouge) (Oct. 14, 2003)
- DNA identifications can be wrong, The Advocate (Baton Rouge) (Sept. 21, 2003)
- La. suit may set DNA law: Serial killer 'dragnetting' raises nationwide issue, The Advocate (Baton Rouge) (Aug. 21, 2003)
- DNA dragnet raises concern, St. Petersburg Times (June 17, 2003)
- Task force seeks help from family, The Advocate (Baton Rouge) (November 20, 2002)
- EPIC's Genetic Privacy Page
- EPIC's Medical Privacy Page
- EPIC's United States v. Kincade Page (case about national DNA database)
- Human Genome Project site
- Privacy Rights Clearinghouse report, How Private Is My Medical Information?
- Georgetown University Health Privacy Project site includes updated information on state laws related to health privacy
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Communications Law and Policy
Jerry Kang and Alan Butler