Questioning and DNA collection of a minor

[Huney36]

California

My 15yr old nephew was pulled out of his class, questioned by the police, and was made to give a DNA sample for crimes he has nothing to do with. The questions the police asked him scared him into believing that if he didn't answer their questions and give the DNA sample, he could be in trouble. Are the police allowed to question and collect DNA from a minor without the parent being notified, advising him of the right to counsel, or a warrant?

 

[seniorjudge]

Q: Are the police allowed to question and collect DNA from a minor without the parent being notified, advising him of the right to counsel, or a warrant?

A: Sounds like that is exactly what they did. DNA is nontestimonial evidence (Google it), so there are not too many protections there.

But, tell us, what is the rest of the story?

 

[Huney36]

The police are trying to convict my brother for sexual crimes that they have no evidence for. The only witness that has shown up for court told the judge that my brother was not the person who committed the crime against her. She told the police that the criminal was hispanic, about 5ft 5in, with a stocky build. My brother is African American, 6ft 2in, with a slender build. The police are now trying to discredit their own witness by saying that she doesn't know what she is talking about because she is partially blind. There has been no evidence presented to warrant my brother being in jail. The crimes are supposed to have been over the last ten years. My nephew would have only been five years old. He doesn't have a drivers license and doesn't even live in the county that the crimes were committed. The police have to provide some evidence against my brother soon. The asked my nephew if he had ever committed a sex crime or ever wore his father's clothes. I think they are trying to use my nephew's DNA to create DNA evidence against my brother. When my brother was originally arrested, he was ordered to give nine samples of DNA to all agencies involved. What does his son have to do with any of this?

 

[CdwJava]

Are the police allowed to question and collect DNA from a minor without the parent being notified, advising him of the right to counsel, or a warrant?

Yes.

Miranda requires custody and interrogation. The collection of the DNA would have been permitted with his consent or with a warrant. Even if the collection were to later be suppressed, depending on the nature of the case it is very possible that they can come back with a warrant anyway, so the end result will likely be the same. Personally, if I had enough for a warrant I would have gone for the warrant beforehand ... makes it all very clean.

- Carl

 

[CdwJava]

The police are trying to convict my brother for sexual crimes that they have no evidence for.

No. They are investigating a report of a crime. If he did not do it then the DBNA may very well exhonerate him.

The police are now trying to discredit their own witness by saying that she doesn't know what she is talking about because she is partially blind.

No. The DA is trying to establish that her eyewitness ID is not reliable.

The POLICE do not prosecute any crimes. The DA does. The DA is putting on the case in court, not the police.

My nephew would have only been five years old. He doesn't have a drivers license and doesn't even live in the county that the crimes were committed. The police have to provide some evidence against my brother soon.

If the case is so weak, then I imagine that the matter will be dismissed soon enough. Apparently they have enough evidence to convince a DA that there is a case strong enough to go to trial, and they have convinced a judge that there is sufficient probable cause to warrant a trial.

When my brother was originally arrested, he was ordered to give nine samples of DNA to all agencies involved. What does his son have to do with any of this?

I could only guess.

Your brother needs to talk to his attorney.

There is definitely more to this story.

- Carl

 

[Huney36]

Thanks for the information. But how can his son's DNA exhonorate him. My mother contacted the detective who questioned my nephew and took his DNA. The detective told my mother that they needed the DNA to exclude my nephew. In order to exclude him, wouldn't they have had to suspect him first? And, how could they have suspected someone who would have been between the age of 5 and 10 at the time the crimes were committed. My brother has been in jail since February 2006. They have yet to proceed with anything except trying to figure out how to collect evidence. They keep telling the judge that they are going to add additional charges. So every month they are in court delaying the trial. How long can they keep him in jail before actually proceeding with a trial?

 

[CdwJava]

Thanks for the information. But how can his son's DNA exhonorate him. My mother contacted the detective who questioned my nephew and took his DNA. The detective told my mother that they needed the DNA to exclude my nephew. In order to exclude him, wouldn't they have had to suspect him first?

What this implies is that they have DNA of some sort that implicates a suspect. They appear to be attempting to exclude possible suspects. This is done so that they can focus investigative resources on possible suspects instead of wasting time on people who are not likely suspects.

And, how could they have suspected someone who would have been between the age of 5 and 10 at the time the crimes were committed.

It depends on the nature of the allegations and the facts in their scenario. Something none of us know.

My brother has been in jail since February 2006. They have yet to proceed with anything except trying to figure out how to collect evidence. They keep telling the judge that they are going to add additional charges. So every month they are in court delaying the trial. How long can they keep him in jail before actually proceeding with a trial?

This is something he needs to ask his attorney. Apparently he has waived time.

- Carl