Burke, Tod W., Rexrode, Jason M., Law & Order
Last October Milwaukee county prosecutor Norman Gahn employed an innovative legal move in an endeavor to prevent the statute of limitation from expiring in the case against a John Doe suspected in a series of kidnapping/rapes.
Gahn filed a John Doe warrant, not uncommon in cases where a suspect's identity is unknown. However, what made this case noteworthy was the means used to identify the suspect. The warrant identifies the assailant as "John Doe, unknown male" with matching deoxyribonucleic acid (DNA) at five locations.
Without an analysis of the assailant's DNA, the statute of limitations on the case would have expired in November the same year. According to Gahn, the statute of limitations expired in the first two rapes, so he believed that filing a DNA warrant would keep the case active and hopefully bring closure to the victims. Since DNA warrants are a new legal strategy, the purpose of this article is to identify the legal issues concerning DNA warrants and its applicability to law enforcement. Discussion will include general warrants, a basic understanding of DNA, the advantages and disadvantages of DNA warrants and recommendations for law enforcement agencies.
The first DNA warrant was filed by Ty Kaufman, prosecutor in McPherson County, Kansas, who used a DNA profile on a 1991 arrest warrant to identify a suspect in several rapes. He stated that sometimes "necessity is the mother of invention," and he recalled a case in California where a John Doe warrant had been filed using only fingerprint evidence.
Kaufman said that something such as a name or physical description is certainly no more valid than a DNA profile, so he went forth with the DNA warrant. Although the suspect has yet to be apprehended, his DNA profile is now on record, and is periodically checked against other profiles to check for a match.
The main question with this type of warrant is whether or not it is constitutional. The Fourth Amendment guarantees "The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. " To protect the rights of citizens, the framers of the constitution drafted this amendment to guard Americans from unreasonable searches.
Warrants in General
The protection built into the Fourth Amendment is that a neutral and detached party, a judge or magistrate, must make the determination of whether or not probable cause exists for the requested search to proceed. A search warrant is generally valid if officers have given a sworn statement to a judge or magistrate, clarifying details that have led them to believe that the stated evidence connected with a crime can be found in a person's home or in their possession.
Bodily invasion of a suspect as a means of collecting evidence has been debated and ruled upon in several cases beginning in the nud 1960s. Perhaps the most relevant case to DNA retrieval is the 1969 case of Davis vs. Mississippi, in which the Supreme Court held that blood could be obtained through the warrant process.
In the 1985 case of Winston vs. Lee the Supreme Court established three factors that must be weighed before a medical intrusion warrant can be legally issued. These factors concern the extent to which the procedure threatens the individual's safety or health, the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and the importance of the evidence to the prosecution's case.
States differ as to the requirements for a warrant to identify a person, but most ask for a name, or some other valid identifier. Due to many criminals using aliases, it is not uncommon for a street address, physical description, fingerprint, etc. …