‘Genetic genealogy’

A promising new technology that can unlock the identity of long-sought criminal suspects and free the wrongly convicted is raising questions about whether it might become too intrusive.

For the first time in Virginia, a judge has considered whether creation of a DNA profile from abandoned personal trash is a violation of search-and-seizure law. The ruling from Alexandria Circuit Judge Lisa Kemler allowed a rape charge to go forward against an Arlington man.

The defendant accused of a 2016 gunpoint rape was identified using “genetic genealogy.” Experts built a family tree based on DNA from the crime scene and then used deduction to focus on a possible perpetrator.

Police followed the identified suspect – Jesse Bjerke – and grabbed two straws he used at a restaurant and some drink cans from his home trash. Prosecutors said the DNA on those items was a “match” to the DNA recovered from the rape victim. Bjerke was charged in February.

Bjerke’s expert said there is no such thing as a “match” in DNA comparisons, and Bjerke’s lawyer said the government goes too far when it can work up a profile on anyone using their discarded genetic material. The lawyer also questioned whether genealogical research is reliable enough to use as the basis for a warrant.

The technique works

Kemler’s July 11 bench ruling – rejecting those concerns – comes amid excitement about the possibilities of genetic genealogy. The new technique last year solved the Golden State Killer case that had gone cold after 30 years. A Virginia-based DNA technology company claims it helped police score 55 “solves” in the past year.

The technology also freed an Idaho man who claimed he succumbed to intense questioning and falsely confessed to a 1996 rape and murder. A judge officially exonerated Christopher Tapp on July 17. Tapp was cleared when a family tree developed from crime scene samples led police to another suspect, who confessed on May 16.

The Alexandria case

Alexandria police say DNA led them to conclude Bjerke committed the rape of a lifeguard at a small neighborhood pool on Sept. 3, 2016. The lifeguard said she was confronted by a man who claimed he was looking for a lost pair of sandals. The man put a gun in her face, bound her hands and assaulted her in a building at the pool.

DNA was recovered, but it did not match anyone in the databases available to the police. Police used the DNA company – Parabon Nanolabs in Reston – to generate a report on what the offender might look like, but the result did not lead to any viable suspects.

In April of last year, the company touted a new service: genetic genealogy. According to the prosecution’s briefs, the company offered to build a family tree by uploading certain DNA markers from the crime scene samples to a website called GEDmatch, designed to help users compare their DNA test results with other people.

GEDmatch reportedly uses proprietary algorithms to analyze the profile and suggest possible relatives. Parabon then uses public records to construct a more complete family tree that would include the perpetrator. Parabon does not do the type of test that would link a particular suspect to the crime scene evidence. Police used the state laboratory for that final link.

The prosecutor – Senior Assistant Commonwealth’s Attorney Jessica Best Smith – said Parabon narrowed the suspect list to one person: Jesse Bjerke. The specificity was based on the fact that Bjerke, 37, does not have any known brothers.

Police followed Bjerke and collected trash discarded by him and his wife. They also followed him to a bar in Old Town Alexandria and collected two straws from his drink. A state lab analysis suggested a connection, but the lab could not offer a statistical probability.

Police arrested Bjerke and then obtained a search warrant to get a mouth swab to test. The state analyst said the odds of selecting an unrelated individual with the same match were one in 7.2 billion, about the population of the Earth.

Challenge to warrantless profile

Faced with those numbers, Bjerke’s lawyer, Christopher Leibig of Alexandria, attacked the DNA typing of the samples from Bjerke’s discarded trash, the forced collection of the mouth swab and the creation of Bjerke’s genetic profile from that buccal swab.

He argued giving police the unbridled power to assemble DNA profiles from items we discard in public, without a warrant, would effectively destroy any Fourth Amendment protection for our genetic data.

“If the 4th Amendment permits law enforcement to search items touched by persons in public to obtain those persons’ DNA profile, nothing stops the government from creating a national database of all persons’ genetic data and using the information for any reason at all,” Leibig wrote in a May 24 brief.

He compared a person’s DNA to the information stored on a cellphone: It is no less private, he argued. Both “phones and genetic material on tangible items can be secured and searched later – after police obtain a warrant,” Leibig wrote.

He also argued that Parabon’s results – effectively fingering Bjerke as a likely suspect – were “largely dependent on various levels of hearsay by persons unknown.”

He said the lab was falsely described on the warrant application as a “forensics laboratory” and the officer improperly described the comparison of the discarded DNA as a “match” with the crime scene DNA.

Fingerprint comparison

Responding for the commonwealth, Smith said Bjerke had no standing to challenge any action taken on the items he abandoned, including the straws and other trash. Smith said Leibig failed to cite any authority for the proposition that a search warrant was required for testing of abandoned property.

Smith also contended a special needs exception applied.

“DNA profiles ‘lawfully obtained’ pursuant to an identified ‘special need’ may … be generated and analyzed without a warrant,” she wrote in a July 3 brief. She compared the limited DNA analysis used to “simply a more reliable fingerprint.”

The cellphone analogy failed because of the distinction between items seized from one’s person and those taken from the trash, Smith said.

The good faith exception also applies, she concluded: “A search that is authorized by binding appellate case law is not subject to the exclusionary rule, even if the search turns out to have been unlawful,” Smith wrote.

Defenses rejected

At the July 11 hearing, Kemler agreed with the commonwealth. She said the mouth swab test did not reveal “private, personal information” other than Bjerke’s identity as a suspect, according to a report in The Washington Post.

Kemler endorsed the fingerprint analogy and the good faith argument as well, the paper reported.

But Kemler raised a question for Smith: Could law enforcement do DNA profiles on abandoned items from everyone in an apartment building where a crime had occurred? Smith reportedly responded that, under the law, police could do those tests, but likely would not because of time constraints.

Kemler denied a motion for a hearing on the scientific reliability of the Parabon test and denied a motion to suppress the incriminating mouth swab test. Bjerke’s trial is set for Dec. 8.