Secret samplesof rape suspect’sDNA called legal | PostIndependent.com
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Secret samplesof rape suspect’sDNA called legal

Boulder investigators collected DNA from rape suspect Brad Wagner’s home, bicycle and handshake under an “expectation of privacy” legal provision.If a person does not expect certain personal objects or materials to be private, then law enforcement has the right to take or search them, said Arnold P. Mordkin, an attorney in Snowmass Village. “Let’s say I needed your fingerprint. We have coffee together, you handle a glass or a cup out in public, and you put your fingerprint on it. Can I use it? You bet I can,” Mordkin said. In the same vein, the DNA on a person’s hand collected with a handshake, as occurred in the Wagner case, would not be considered private, Mordkin said.Wagner, 36, was arrested at his home on the 1300 block of Grand Avenue in Glenwood Springs on June 11 on charges of rapes that occurred in the mid-1990s in Boulder. On June 18, prosecutors formally filed eight first-degree sexual assault charges against Wagner. On June 23, Wagner was also charged with four counts of first-degree sexual assault in a 1994 Lakewood rape. He is being held at the Boulder County Jail on $1 million bond.A Boulder investigator posing as a real estate client gathered DNA from Wagner’s handshake and bicycle handlebars on May 20 in Glenwood. There was no expectation of privacy with his handshake or his bicycle, particularly because the bicycle was located in a public area, said Jane Harmer, detective for the Boulder Police Department.Several court cases have established the expectation of privacy concept, including the 1988 U.S. Supreme Court case California vs. Greenwood, which stated that garbage left outside a person’s home can be searched without the owner’s approval. Laws governing search and seizure fall under federal jurisdiction, and state constitutions usually defer to these laws, Mordkin said. Section 7 of the Colorado Constitution’s Bill of Rights protects people against “unreasonable searches and seizures,” but doesn’t specifically mention expectation of privacy.Wagner’s attorney, Wilbur Smith, said police violated Wagner’s constitutional rights when his DNA was collected unknowingly from him. “Lawyers have a terrible time with this. Often these decisions are not cut and dry,” Mordkin said.Wagner’s DNA matched a Boulder Police Department profile from DNA collected at the time of the Boulder rapes in the mid-1990s, when DNA testing was just being developed. In 1994, the Colorado Bureau of Investigation began analyzing DNA through a method called Polymarker DQ Alpha, which provided a limited amount of extractable information for homicide and sexual assault cases, said Ronald Arndt, agent in charge of the biological science section of the CBI laboratory in Denver.In 1999, the short tandem repeat, or STR, method of analyzing DNA became available. Sequences of DNA that are repeated in tandem show more of a variability between humans, providing more useful information than past techniques for developing an individual profile.”Primarily, the two main differences between now and 10 years ago is we have a better method of discrimination between individuals, and this info can be used to search a national database,” Arndt said. More than a million profiles exist in a national database of DNA, created by the FBI in 1998.The future of DNA technology will mean cheaper and faster analysis, Arndt said. Currently, an analysis takes roughly two weeks and can be quite costly.As for Wagner, Harmer said she feels confident that case law is in the favor of the Boulder Police Department.”They can file their motions away,” Harmer said. “But this is a fight that’s already been fought. The courts have upheld there is no expectation of privacy.”Contact Christine Dell’Amore: 945-8515, ext. 535cdellamore@postindependent.com


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