Judge rules cops did not violate rights of 3 officers when DNA samples were taken without warrant

The rights of three Phoenix police officers were not violated when investigators looking into the death of another officer took DNA samples from them, a federal appeals court ruled Monday.

Judge Andrew Hurwitz, writing for the unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals, acknowledged that the police department did not have a search warrant when it demanded the three officers comply. And Hurwitz said there was never any suggestion that any of the three were actually involved in the death of Sgt. Sean Drenth, whose body was found in his patrol car near the state Capitol in 2010.

But Hurwitz said there were DNA samples of people other than Drenth at the scene. He said it was important to have tested all officers who were there to ensure that if homicide charges were brought a defense lawyer could not claim that the sample had been contaminated.

And Hurwitz said police did get a court order, something he said had similar protections as a warrant.

But Michael Bekesha, an attorney for Judicial Watch who is representing the three officers, said that’s not true.

He said a warrant would have required police to prove to a judge that there was probable cause that his clients were suspects and that there was probable cause to believe they had evidence relevant to the case. Bekesha said police had none of that.

Bekesha said he is weighing seeking U.S. Supreme Court review.

Court records show Drenth was found in the corner of an empty lot, with a shotgun across his chest and a second weapon by his ankle. His service weapon was found just beyond one side of the lot.

More than 300 public safety personnel went to the scene, with about 100 in the area where his body was discovered.

That included these three officers who were assigned to canine search teams.

The investigation revealed DNA from an unknown male on the patrol car and weapons. All but these three officers who entered the crime scene consented to give samples.

None were suspects, as equipment in their vehicles confirmed they were not at the scene. And the investigator said the samples would be used solely for this investigation and not entered into a national database.

But they still refused until an investigator got a court order. The trio subsequently sued, seeking a court order the collection was illegal and requiring the samples be destroyed.

Hurwitz said it does not matter that the trio were not suspects. He said all the police needed was evidence that a homicide likely had taken place.

“Excluding public safety personnel as the source of DNA would plainly aid in the conviction of an eventual criminal defendant, by negating any contention at trial that police had contaminated the relevant evidence,” the judge wrote.

Bekesha sniffed at that assumption, saying there really wasn’t any reason to take the samples.

“If there was a match, they weren’t suspects, the police would be no closer to solving the investigation,” he said. “If there wasn’t a match, which I think happened in this case, the police are no closer to solving the investigation.”

Bekesha said it would have been different had the police department had a policy of taking DNA samples of all officers at the time they are hired.

“But when it’s taken after the fact, after employment already has been started, the only way to do so is to get a warrant,” he said.

The case eventually was ruled a suicide by the medical examiner, though a police review board, dealing with a petition by Drenth’s widow, agreed that the evidence was sufficiently questionable to allow her to get his full survivor benefits.