Yes, it is against Minnesota law for police to gather civilian DNA without a warrant. And, yes, the Dakota County Sheriff has been doing it since 2015 anyway.
Sheriff Tim Leslie has only just agreed to stop, and that’s because for the past two years, a 69-year-old motorcyclist from Rosemount has been staunchly refusing to open his mouth to any of the sheriff’s people for swabbing.
John David Emerson was arrested back in January 2016 on an assault charge. According to the criminal complaint, he was riding his motorcycle in Hastings when he passed a car on the shoulder. The driver of the car got upset, and yelled at Emerson about the illegal pass at a stop sign. Emerson then allegedly got off his motorcycle, walked over to the car, and punched the driver in the chest. The driver told police that as he was trying to push Emerson back, he pulled a knife.
Emerson claimed the driver was “nuts,” and had tried to run him off the road. He denied throwing a punch.
Emerson's trial is scheduled for next spring.
However, the Dakota County Sheriff’s Office insisted on taking his DNA based on a 2005 Minnesota statute that required law enforcement to swab anyone who appears in court for certain violent offenses as long as a judge agrees the charges are supported by probable cause. That statute was almost immediately overturned in 2006, when an appeals court found it unconstitutional.
A decade later, the Dakota County Sheriff’s Office announced it would resume gathering DNA from arrestees because the U.S. Supreme Court had just heard another case, Maryland v. King, which allowed it. By the time Emerson entered the system in 2016, the Dakota County Sheriff’s Office had already swabbed several dozen people prior to conviction, according to the American Civil Liberties Union.
The ACLU took on Emerson’s case, suing Sheriff Leslie on the grounds that Minnesota’s state constitution, which goes further than the U.S. Constitution when it comes to guarding civil liberties, still outlaws warrantless DNA collection.
There was no investigative purpose for swabbing Emerson’s cheek, said ACLU lawyer John Gordon.
“If they had reason to think that the DNA sample would help them solve the crime for which the person had been arrested, they could easily have gotten a warrant,” Gordon says. “This has got to do with the assembly of these massive databases, which is going on the federal and the state level, to trawl through them and find evidence of crimes that they may not have any particular suspects in.”
This month, the ACLU and Leslie settled the suit, with Leslie agreeing to destroy all DNA gathered from arrestees whose cases were ultimately dismissed. Emerson’s saliva will remain his personal property as well, as long as he isn’t eventually convicted of the 2016 assault.
"The settlement was reached in recognition of the fact that the statute in question has statewide impact and that any potential costs associated with defending the law should be the responsibility of the state of Minnesota and not solely the responsibility of the citizens of Dakota County," Leslie said in a statement.
"If the Minnesota Legislature wishes to have the constitutionality of this state law defended through civil litigation, it should pass a law providing for reimbursement and the county defending the constitutionality of the statute in civil litigation, or provide the Minnesota Attorney General with the resources needed to defend the validity of the law."