BRIGHTON, Colo. (CBS4) – Brighton police say one of their uniformed officers made a “misassessment” when she took DNA samples from a 12-year-old boy and his 11-year-old sister when their mother wasn’t home and no adults were present.
The siblings were considered victims of a crime and their mother says they ended up feeling like suspects.
“I was astounded, I couldn’t believe it,” said Deanna Castaneda of the incident.
Castaneda’s attorney, Paula Greisen, offered a blistering critique of the actions of the Brighton Police Department.
“This is not a gray area,” Greisen said. “This is 101 police standards. You do not search children and you especially do not take DNA of children without their parents or guardian’s consent.”
In September someone broke into several cars around Castaneda’s Brighton home, including her SUV. The thief stole her car stereo, but also left behind a small smear of blood. Brighton police told Castaneda they would like to obtain DNA samples to exclude family members and make sure they did not follow those particular trails during their investigation.
The 35-year-old single mother said she was initially in favor of providing DNA to assist police, but soon decided against it. Nevertheless, one day while she was at work and her son Marcus and daughter Isabella were home alone after school, a female Brighton police officer came by.
“First she asked us to come outside and give DNA,” Marcus said. “So we came outside and then she swabbed my sister’s mouth and said, ‘Now it’s your turn.’ And so I did the same as my sister; opened my mouth and let her swab me. It was almost like an unexpected dental visit,” the seventh grader said.
The police officer left after obtaining the samples.
“Well I was furious, to put it mildly,” Castaneda said.
As soon as she arrived home she picked up her kids and drove to the Brighton Police Department demanding officers return the kids’ DNA.
“Kids need a permission slip to ride a bus for a field trip, so you can’t just take minor children’s DNA without their parent’s knowledge. It was done illegally and without my knowledge or consent and it should never have taken place,” Castaneda said.
About two hours after the DNA samples were taken, Brighton police returned the DNA test kits to Castaneda.
John Bradley, a spokesman for the Brighton Police Department, said the officer involved “honestly believed there was no issue with the parents. We weren’t looking at the kids as suspects. It was just exclusionary DNA, a very common practice. She (the officer) believed she had the permission of the children at the house. The kids were cooperative and had no hesitation about doing what she asked.”
Marcus told CBS4 he wasn’t aware he had a choice in the matter.
“It was really awkward, but it’s the cops, so you have to,” he said.
Bradley says the DNA would never have been entered into a database.
“It was merely to say these samples are not relevant. So I think it was just an oversight and yes, it’s made us review our policies. From now on we’ll get explicit consent from parents before we collect that material,” Bradley said.
Castaneda has now hired Greisen to explore the family’s legal options.
“The concept of taking DNA swabs from kids without parental permission and without a parent present was pretty shocking to me,” Greisen said. “To do that to children, to take their DNA without consent or a search warrant is one of the most intrusive forms of searches that can be conducted. We don’t want as a society our kids to be taught police are out there violating the constitution and people’s rights, but that’s what happened in this case.”
Mark Silverstein with the American Civil Liberties Union in Denver said, “If the police require someone to submit to giving up a DNA sample; that is a search that must meet the requirements of the Fourth Amendment. To comply with the Fourth Amendment, police would need a warrant.”
Silverstein said anyone can voluntarily consent to providing DNA to police, “But I don’t think an 11- or 12-year-old can be regarded as having given free and voluntary consent.”
Brighton police say they have not made an arrest in the car break-ins.