Updated: Wednesday, September 23, 1:55 p.m.
The 6-foot-5, 21-year-old journalism senior was brought into a University of Florida Police Department interrogation room. It was a rainy Wednesday evening in early September. The room where he was placed was spartan, with a broken clock on the wall. The absence of ticking was noticeable in the otherwise silent room.
He fit the description: white male, more than 6-feet tall, medium build and, most importantly, he had been in the area.
UFPD had some questions for the senior who they say had been spotted near the scene of one of the recent assaults on or near the University of Florida campus.
Across the table from him sat UFPD Detective Abby George. On the wall behind George hung a sign stating every individual’s right to remain silent.
When the ten minutes of questioning was over, George sent the 21-year-old home. He had never been Mirandized, and wasn’t told he was a suspect. But UFPD wasn’t quite done with him yet.
The next day he awoke to a voicemail from UFPD. He was asked to return to UFPD’s office for a “mouth swab” as soon as possible. While he was providing his DNA sample, the senior said to the police officer: “I don’t know much about DNA, but the fact that you’re taking mine is a good thing?”
The officer responded: “Yes, it’s a very good thing.”
The 21-year-old is one of about 10 individuals subjected to fingerprinting and swabbing, categorized as evidence collected by the UFPD. The Gainesville Police Department is also collecting similar evidence but declined to disclose how many individuals have been asked to submit or if there is an overlap in the samples between the two departments. The individuals were selected because they “look like the attacker,” yet none have officially been connected to the attacks.
All of the information gathered is legal because the individuals consented, according to legal experts. But some question whether the practice is ethically sound.
Persons of Interest
Detective George’s questions to Jay Martin were a mix of facts and philosophy. What were you wearing? What were you doing from 5 p.m. to 11 p.m.? If this guy gets caught, what do you think should happen to him? Do you think he deserves a second chance?
Martin had the answers. He was wearing a gray polo and khaki pants. He was in Turlington for an interview. As a Catholic, he believes the attacker deserves a second chance if he is truly sorry.
“They didn’t say how they knew I was in the area,” Martin said. “I felt that the best course of action to prove my innocence or to state my innocence would be to just kind of go with — to help them without seeming sketchy or seeming kind of weird by not wanting to give DNA or not wanting to get questioned.”
When Martin was in UFPD’s office providing a mouth swab sample of his DNA the day after he was questioned, he was explicitly told the DNA was not being sent off for testing. From what Martin was told it seemed his DNA would be held on file in UFPD’s office until needed. The consent form Martin fingerprinted and signed read, “I understand that my DNA is being taken in an investigation related to battery.”
The officer collecting Martin’s DNA explained every step of the process. He casually told Martin he was “like the fifth guy today” to come in and provide DNA. But the officer never mentioned what happens after the DNA was collected.
Martin was not explicitly told how long his DNA would be in the UFPD office or if it would ever be tested.
When Martin called UFPD about a week after his DNA was collected, to inquire about the status of the investigation and his DNA sample, a UFPD officer told him it was safe in an envelop of evidence. The officer said if the case is closed, all evidence, including Martin’s DNA sample, would be destroyed. He said if in a certain period of time the case isn’t closed, Martin’s DNA will still be destroyed — but the officer couldn’t recall that specific time frame.
Ron Kozlowski has been practicing law at Turner O’Connor and Kozlowski in Gainesville for about five years, but the firm has been practicing criminal defense law for more than 40.
Kozlowski said it is difficult to know whether DNA samples will be destroyed.
Since June 2009, Florida has required police to take a DNA sample, like a mouth swab, of any person charged with a felony. But willing DNA given by persons of interest is somewhat of a gray area in the eyes of the law.
“Collection of cellular material, something from the body, something more than a fingerprint, it is considered a search, and obviously, we know that we have a right to be free from unreasonable searches,” Kozlowski said. “So typically, police would need a warrant to obtain a sample for DNA testing, or they would need consent.”
The 2014 Florida Statutes do not specifically address DNA samples voluntary provided by suspects or persons of interests.
According to Florida Statute 943.325, which regulates DNA databases, it is legal for the state to collect and maintain DNA databases. The statute reads in part, “it is in the best interests of the citizens of this state to establish a statewide DNA database containing DNA samples submitted by persons convicted of or arrested for felony offenses and convicted of certain misdemeanor offenses.”
As for how the DNA included in the database shall be collected, the statute includes samples from crime scenes, samples from “qualifying offenders,” samples “lawfully obtained during the course of a criminal investigation,” samples of unidentified human remains, samples voluntarily contributed by relatives of missing persons and other samples approved by the department.
The question that arises with the collection of DNA is how the sample can be used.
“If the consent is vague enough and general enough, then the court has generally said that they can use that to match it against the database and compare with other unsolved cases,” Kozlowski said. “Once you’ve given that DNA sample you don’t know what’s going to be done with it. It’s there for life…they’ve got your fingerprints, your DNA and that can be used for a lot of different things and if you haven’t narrowed the scope of your consent it may come back to haunt you years later.”
UFPD’s investigation expands far beyond one DNA sample.
Police are investigating three recent assaults on or near campus, the first of which was reported on Aug. 30. Originally, four attacks were being investigated in relation to one another, but the third was later discovered to be unfounded.
In all three attacks, the attacker is described as a white male, in his 20s, 6-foot-3 or taller, of medium build and wearing Gator clothing — an easy description to fit on the UF’s campus.
One of the victims said she has been working with UFPD to further the investigation since her attack. She said she has been shown images of UF T-shirts to see if any matched the shirt she remembers her attacker wearing.
“Because where I was there is no video surveillance — they can only get so much,” the victim said. “They said I gave them so much information, so much detail on what he was wearing, that I think they were trying to identify him from videos earlier on in the day on campus.”
The victim said she was unaware DNA was being collected in relation to any attacks when she spoke with WUFT on Sept. 18.
Though she had taken a UFPD sponsored Rape Aggression Defense Program (RAD), she said it wasn’t something she found to be very useful when faced with the real-life situation.
“In a situation like that, it happens so fast that even if you have pepper spray, even if you were prepared, you’re caught in the moment…if I had pepper spray, that would have done me no good,” she said.
As for where the investigation stands, the victim said she’s been in touch with both UFPD and the Gainesville Police Department a few times since her attack.
“They know that I don’t really want to talk about it, so it’s not like they call me every time that they think they find something,” she said. “When they call me they’re just making sure that I’m OK and ask me a question that they need answered. They just let me know that I can call whenever I want. If I want information or if I need help or if I come up with anything else or if I remember anything.”
An Ongoing Investigation
Both UFPD and the Gainesville Police Department have been operating with what GPD spokesman Ben Tobias, calls a “unified command.” He said both UFPD and GPD have been collecting DNA samples from individuals they’ve been able to identify as persons of interest throughout the course of the investigation.
“Each time we stop someone that even comes close to matching the description of the attacker, we’re requesting that they submit to these samples,” Tobias said. “That way we can basically check their samples and make sure that they’re not who we are looking for.”
The police departments have only publicly released that description as a white male, 20 to 30 years old, 6-foot-3 or taller and of a medium build.
Tobias said GPD has “very limited DNA” that is connected with the case, but he could not disclose which of the three attacks that DNA was gathered from.
DNA gathered by GPD officers in relation to the recent UF attacks are being sent to the Florida Department of Law Enforcement (FDLE) so officers there can extract DNA from the swabs and create a DNA profile, Tobias said. He added GPD does not have sufficient technology and training to conduct these tests in-house.
“The consent is for, basically, collection of their DNA standard,” he said. “That’s a standard that goes to a database and is kept on file but that is no concern to anyone that’s not planning to commit a crime.”
Tobias said DNA is housed in a state database. He said each sample is assigned a number and those numbers would not turn into the person’s name until it matches up to another sample.
“So, whether it’s a GPD officer or a UFPD officer all the swabs are going back to the same place and both agencies are conducting a simultaneous investigation,” Tobias said.
But Brad Barber, UFPD’s public information officer, said samples of DNA collected by UFPD are not being sent off for testing.
“That sample is actually maintained by us, by our department in our evidence until such time as the case is either solved, at which point it would be destroyed or it would be submitted as part of the investigation to the Florida Department of Law Enforcement,” Barber said.
UFPD has collected samples from about 10 persons of interest with their consent.
“The hope is to either determine or eliminate individuals that may be associated with this investigation,” Barber said.
Since this in an ongoing investigation, the investigating officer — Detective George — would not comment on the investigation.
Both agencies did agree this is not the first time either has asked for persons of interest to submit voluntary DNA samples.
“Anytime where we have a crime and we can’t locate a suspect immediately then DNA has been used in this manner before,” Tobias said.
Though DNA databases are not illegal — they are in fact kept by most state governments in the U.S. — Kozlowski said there’s somewhat of a divide as to whether it’s ethically right or wrong.
“I think what you’ll find is that some people will be offended by it, and they won’t like the fact that the government is collecting yet more information about people, but there will be at least as many people who say anything the government does to keep us safer is good,” Kozlowski said. “You have to find a balance between individual rights and the necessity of the government to do what they can to keep the rest of us safe.”
Leah Harding contributed to this report.