BY ALAN SAYRE, The Associated Press
NEW ORLEANS (AP) -- A half century ago, police techniques included rubber hoses and the Yellow Pages across the heads of suspects. Now, science often rules the day, such as in the use of DNA evidence.
A man in Thibodaux by the name of Ricky Gravois likely would have trouble discerning the difference. Gravois was one of at least 1,200 men “swabbed,” or asked by police to give saliva samples for DNA testing during the investigation into the Louisiana serial killer.
A lawsuit alleges that state police did a lot more than just ask Gravois for his sample. The suit contends that an investigator showed up at the drug store where he worked and told Gravois that he’d better submit to a swabbing on the spot _ unless he wanted to see his name bantered about in public as a suspect.
Gravois said he’d be glad to give a sample at a crime laboratory. Not good enough, the cop informed him. After a brief chat between the investigator and Gravois’ boss, Gravois found himself suspended without pay, the suit alleges.
“It’s outrageous. It’s absolutely unconscionable,” said Gravois’ attorney, Aidan Reynolds. “They singled out this individual based upon an anonymous tip with no evidence. They could do it to me or you or anyone else.”
Reynolds’ objection might qualify as a big “so what,” except for the Fourth Amendment, which is supposed to protect the citizenry with its ban on “unreasonable searches and seizures.”
A couple of centuries of constitutional law should be enough for police to know what they have to do to conduct a lawful search, but apparently not in this case, Gravois’ attorney contends.
“They apparently got some anonymous tip, which does not rise to the constitutional requirement to seize a person or seize property,” Reynolds said. “These are not new principles of law.”
Several other lawsuits have been filed as the result of the massive DNA swabbing. Reynolds said others have complained about similar treatment by police.
“Instead of utilizing tried and true, sound police investigative procedures, they instead decided they were going to swab everyone and hopefully get lucky, while building a database they otherwise wouldn’t have, by threatening people and using heavy-handed techniques,” Reynolds said.
Police defended the technique during an intense investigation into the series of murders that had set an entire region on edge. Baton Rouge Police Chief Pat Englade said investigators were not just walking up to people and saying, `Open you mouth so we can swab you.”’
The first criminal conviction using DNA evidence occurred in 1987. Since then, law enforcement has moved rapidly to assemble state and national databases. For example, Louisiana has passed a law to get DNA swabs from anyone arrested for a felony and some misdemeanors.
However, a federal appeals court in San Francisco this past fall ruled unconstitutional a national law requiring federal convicts to provide blood samples for DNA testing.
That court said routine collection from convicts constitutes an illegal search because there is no reasonable suspicion that they were involved in crimes other than the one they are serving time for.
Reynolds, who also is handling a suit asking for the destruction of the samples taken in the serial-killing investigation, said police moved against most of the men because of calls from “angry ex-girlfriends or ex-wives” or because they had the misfortune to drive white pickup trucks, which the killer supposedly did.
“Zero had probable cause,” Reynolds said.
Eventually, Derrick Todd Lee, who is now awaiting trial for the serial killings, gave a swab after the state attorney general’s office, investigating a separate case, reviewed Lee’s background and got a court order for the test.
And it’s a good thing someone got a warrant, Reynolds pointed out. Illegally obtained evidence cannot be used in court and other evidence gathered as the result of the “fruit of the poisonous tree” also can be ruled out.
Meaning that if police had lucked out and swabbed the right guy during their DNA dragnet, it would have been for naught.
“The judge would have been required to suppress the only evidence that links that person to those crimes,” Reynolds said. “He’d be walking the street.”