Executive Summary

• For years, the NYPD violated New York State DNA privacy protections by collecting New Yorkers’ DNA secretly, banking children’s DNA without parental permission, and conducting stop-and-spit campaigns in BIPOC communities, DNA dragnets that invade thousands of New Yorkers’ genetic privacy in the hope of stumbling across a single suspect.

• Those the NYPD puts in its rogue database become permanent suspects, their DNA scanned thousands of times a year in cases where they have no connection whatsoever.

• Every scan is an invitation for injustice, with DNA contamination and laboratory mix-ups driving false arrests and wrongful convictions. Even worse, the NYPD’s experimental DNA techniques may leave many of their claims (and resulting convictions) in doubt.

I.              Introduction

When someone robbed a Dunkin Donuts in Jamaica, Queens in 2015, the NYPD was sure they had their man: Terrell Gills’ DNA was all over the touch-screen register.[1] Officers arrested Gills and jailed him on Rikers Island. Gills languished in jail, week after week, month after month, even after another man admitted to robbing two additional Dunkins the same week, in the same neighborhood, in the exact same way—wielding a knife and sporting a distinctive crimson and yellow hat.[2] Police and prosecutors continued to treat the DNA like a smoking gun, but the truth is that it just proved that Gills frequented the neighborhood coffee shop. The sample didn’t show when Gills left it; lab tests couldn’t show if the DNA was deposited during a crime or when paying for an iced coffee. Gills spent over a year and a half wrongly incarcerated before a jury acknowledged the obvious truth: he had been jailed for nothing more than being devoted to Dunkin.[3]

Darrell Harris was in New Jersey DJing a birthday party during a 2018 burglary, but NYPD officers arrested him anyway based solely on the strength of DNA evidence.[4] Harris’s alibi stood up to scrutiny, and his wrongful arrest was eventually chalked up to a mistake in the laboratory that processes DNA samples for the NYPD.[5] But this simple mistake caused a cascade of calamities for the Grenadian immigrant who worked on the tarmac at JFK airport. Harris lost his job and spent $25,000 on legal help before prosecutors sheepishly dismissed the charges.[6] The NYPD has tunnel vision when DNA is involved, leading it to dismiss solid alibis and other exonerating evidence—even when the alibi comes from law enforcement.[7]

Not only does the NYPD overestimate the role of DNA evidence, its DNA lab in the Office of the Chief Medical Examiner (“OCME”) does shoddy testing. Under the NYPD’s direction, it has used unproven techniques, and repeatedly bungled DNA evidence. Many New Yorkers aren’t just subjected to these sorts of DNA dragnets once or twice, but on a daily basis. A lineup of almost 34,000 predominantly BIPOC New Yorkers—many never arrested, much less convicted of any crime—have their DNA scanned in new investigations every day, constantly raising the risk that they’ll be wrongly hauled away because of a false match or a misunderstanding of what that match means.[8] Each person in this perpetual lineup is one lab error or investigative mistake away from being wrongly accused and arrested. And most don’t know that their DNA was ever taken, let alone that it’s being searched.[9]

II.            The NYPD’s Illegal DNA Database

All Aboard, Whether They Know it or Not

Don’t accept gifts from strangers, especially in an interrogation room. The friendly officer passing you a Coke or a cigarette actually wants to swab your drink or smoke for DNA, adding your genetic signature to the NYPD’s DNA database. This isn’t just invasive, it’s illegal. In clear violation of New York State genetic privacy laws, the NYPD has compiled a rogue database of nearly 34,000 New Yorkers. Every time the NYPD’s forensic unit searches the rogue database, it exposes each and every person in it to the risk of a false match.

The lineup includes Shakira Leslie, the named plaintiff represented by the Legal Aid Society in a class action lawsuit challenging the NYPD’s practice of secretly collecting individuals’ DNA and maintaining a “rogue DNA database.”[10] The Legal Aid Society brought suit on behalf of Leslie and countless other New Yorkers whom officers have no legitimate reason to suspect of criminal involvement. In 2019, Leslie was getting a ride home from a family birthday party when NYPD officers pulled the car’s driver over for a traffic infraction, found a gun, and charged everyone in the car with weapons possession.[11] The charges against Leslie were dropped, but not before she waited for over twelve hours at the precinct without anything to eat or drink. Eventually, officers gave her water—and without her knowledge or consent, swabbed her used cup and entered Leslie’s DNA into the DNA database.[12]

Shamill Burgos enlisted in the U.S. Army in 2020 and progressed quickly, being promoted to sergeant in March 2023.[13] He has no criminal history, but throughout his service, Burgos worried that the NYPD could accuse him of a crime. Prior to enlisting, Burgos was in a friend’s car when NYPD officers allegedly found a gun in the trunk and arrested both men.[14] The NYPD dropped all charges against Burgos—after he spent hours handcuffed to a pole before being led to an interrogation room and offered a cup of water and a cigarette. No surprise: Burgos became another entry in the rogue database.[15]

It’s not a surprise that Leslie and Burgos were targeted for DNA collection for their tangential connection to gun offenses, either. After the NYPD stated its plan to swab every gun it recovered for DNA, the department needed a correspondingly big database to search for suspects—and it got one, growing the database however it could from a few thousand records in 2000 to 25,000 records in 2010 to over 64,000 records in 2017.[16]

The NYPD calls the carefully staged drink-and-a-smoke setup it used on Leslie, Burgos, and countless other New Yorkers “collecting abandoned DNA.” According to the NYPD, police officers can harvest “abandoned” DNA from biological material that a person “leaves behind” inadvertently or involuntarily, as long as the person is not coerced.[17] But its tactics amount to coercion, with officers manufacturing environments to entrap unsuspecting individuals. The NYPD detective guide tells them exactly how: at a precinct, for example, detectives can sanitize an interrogation room, place an individual there, “[p]rovide... an object that will be partially consumed (e.g., cigarette, chewing gum, apple) or a container filled with a beverage (e.g., water in a plastic cup, soda in a can, coffee in a Styrofoam cup, juice in a plastic bottle),” carefully retrieve the used item, and send it to the lab for DNA analysis.[18]

By the NYPD’s logic, none of us are entitled to genetic privacy. We all shed, and thereby “abandon,” DNA-rich hair, sweat, and skin cells everywhere we go. It’s nonsensical to assume that involuntarily shedding one’s DNA amounts to giving permission for it to be collected and analyzed (much less another person’s DNA that one might transfer to a surface) under any circumstances, particularly not when NYPD is doing this intentionally as a standard practice. But this twisted logic serves a purpose: attempting to sidestep the consent requirement of the state’s genetic privacy law.[19] Under the state Civil Rights Law, New York prohibits genetic testing of any person by any party, including law enforcement, without a person’s written and informed consent.[20] There are certain narrowly-tailored exceptions to the law, including for court orders and convictions, but unsurprisingly, those exceptions do not license the NYPD to indiscriminately, nonconsensual collect the DNA of any person its officers arrest or question.[21]

In fact, State Executive Law—the law that authorizes law enforcement DNA databases in New York State—only allows banking individuals’ DNA in a suspect index if they have been convicted of a felony or a criminal misdemeanor.[22] New York courts have repeatedly upheld this point.[23] More broadly, the State Executive Law authorizes only one suspect index, leaving no room for the NYPD to maintain its local database without legislative authorization.[24]

Genetic Stop-and-Frisk

The NYPD doesn’t limit itself to collecting individuals’ DNA one at a time at the stationhouse. Officers also conduct door-to-door DNA dragnets, pressuring hundreds of New Yorkers to submit to DNA collection when it runs out of leads in some criminal cases.[25] These “knock-and-spit” dragnets are a case study in racial profiling. In 2016, for example, the NYPD collected saliva swabs from 500 men, including at least 360 Black men, in a large area surrounding the site of a murder.[26] Unsurprisingly, the dragnet did not turn up a killer, but the men were entered into the rogue DNA database anyhow.[27]

Due to dragnet collection practices and racial disparities in arrest rates, the NYPD’s rogue database is likely mostly and disproportionately populated by BIPOC New Yorkers.[28] When testifying in front of the New York City Council in February 2020, the NYPD could not produce the racial breakdown of the database and promised to produce the data.[29] To date, that hasn’t happened.[30]

In 2020, the NYPD announced it would reform its DNA collection practices, implementing a new consent form that emphasizes the right to refuse to provide a voluntary DNA sample.[31] In practice, it doesn’t appear that anything has changed in this respect, either. The NYPD has admitted to secretly collecting adults’ and children’s DNA after being refused consent.[32]

Upending Juvenile Justice

According to the most recent data available, five percent of the NYPD’s genetic suspects are minors, but they appear to receive the same “treatment” as adults.[33]

In 2018, NYPD officers arrested a 12-year-old boy and offered him a soda at the station, which they then secretly swabbed for DNA.[34] Charges against the boy didn’t stick, but per NYPD policy, the boy’s DNA was still entered into the rogue DNA database. It would have stayed there had his parents not successfully petitioned the court for his record to be removed.[35] In the intervening year, his record was searched thousands of times.

In 2020, the NYPD arrested J.B., a 15-year-old boy with special education needs.[36] Waiting, soda, swabbing—into the database J.B.’s DNA went.[37] Officers didn’t even bother comparing his DNA to the case he’d been arrested for, making J.B.’s swabbing and admission to the database opportunistic, and almost recreational.[38] It took a court order to remove his record from the database, as well.[39]

The juvenile justice system spares children a permanent criminal record and the suspicion and burdens that follow criminal records.[40] These two boys were lucky: their families discovered that their sons had been swabbed and succeeded in their court challenges. Other boys and girls certainly stay in the database and under constant criminal suspicion well into adulthood.

The NYPD’s Bad Faith Reforms

The DNA Identification Act of 1994 established a nationwide network of DNA databases that funnel data from municipal and state DNA databases to the Combined DNA Index System (CODIS).[41] Law enforcement agencies can conduct nationwide searches for DNA matches provided they meet CODIS requirements, which include establishing a process for removing individuals’ DNA records.[42] Sixteen states including New York allow individuals to request to have their DNA records expunged under certain conditions.[43] An additional thirteen states expunge DNA records automatically.[44]

The NYPD’s rogue database, by contrast, is an unregulated lone wolf, unconnected to CODIS and unconstrained by anyone’s rules. Secretly swabbed individuals do not receive notice that they’ve been added to the database, making it nearly impossible to petition for removal. In 2019, only seven people were removed.[45]

Then, for a moment, change appeared possible. In 2020, the NYPD yielded to pressure and announced that it would implement an automatic expungement process and other reforms (including taking consent to voluntary sampling seriously, as previously discussed).[46] Under the new removal procedure, the NYPD agreed to conduct reviews of profiles in its DNA database every four years, with individuals who have not been convicted of any crime and who are not part of an ongoing investigation eligible for removal if the NYPD and prosecutors agree to it.[47] Four years is a long time—too long—in a database that may be searched thousands of times per year. And the NYPD insists on initiating, conducting, and overseeing its own reviews. That’s problematic, given the NYPD’s history of using records it was supposed to have destroyed.[48] The NYPD has added new records to its rogue database faster than it removes them. The database grew from 32,000 profiles immediately pre-”reform” to nearly 34,000 profiles today.[49] As Beth Haroules, Director of Disability Justice Litigation at the New York Civil Liberties union, described the NYPD’s reforms to S.T.O.P.: “it’s lip service.”[50].

III.        Contamination, Unproven Techniques and Incompetence at the NYPD’s Lab  

The NYPD would have us believe that being added to the DNA database is like being listed in the phonebook—no reason to worry, law-abiding New Yorkers, officers won’t be calling. But the analogy doesn’t hold. Being listed in the rogue database is a very real harm. The NYPD doesn’t treat everyone in the phonebook as a suspect in every crime. A person can change their phone number, but not their genetic signature, if it’s misused or compromised—and a person’s DNA is far more sensitive, revealing details about their health and family members.[51] And while calling the wrong number is inconsequential, incorrect forensic DNA analyses put innocent people at risk of arrest and conviction with some frequency.

Television has compounded that risk. Shows like Law and Order and CSI make DNA evidence sound like a sure thing: officers collect DNA from a crime scene, send it to the lab, and presto, identify an unknown victim or perpetrator. TV has made us expect a lot from DNA evidence.[52] Even juries, who hold people’s lives in their hands, tend to vote with the DNA.[53] Their overconfidence in DNA analyses’ accuracy lends itself to wrongful convictions and increased plea bargains, with wrongly accused individuals fighting an uphill battle against the perception of science as unassailable.[54] Juries’ expectations of DNA evidence also incline them not to believe victims of sexual assault when DNA evidence cannot be produced (“the CSI effect”).[55] Of course, DNA can be critically important, with organizations like the Innocence Project using evidence-based and scientifically rigorous DNA techniques to exonerate hundreds of wrongfully convicted individuals.[56] But forensic science has hard limits, even when performed carefully. And the NYPD doesn’t exercise care. It fails to insist on basic quality controls in its DNA lab, uses invalidated analysis techniques, and has tolerated incompetence in the lab. 

The NYPD Neglects Context

The complications start at the crime scene. We all shed hair, skin cells, and other DNA-rich biological material everywhere we go, so that traces of many people’s DNA (not just victims and perpetrators) are present at any crime scene.[57] Early DNA analysis techniques weren’t sensitive enough to detect trace DNA; they require thousands of cells to work, the kind of sample that might be collected from a visible blood or semen stain.[58] By contrast, today, common forensic lab techniques can amplify the DNA signal of just a few cells—the kind of sample that might be left behind when someone walks through a room.[59]

This sensitivity creates problems for DNA-as-evidence. With everyone shedding DNA everywhere all the time, anyone who visits a crime scene, days before or after the fact, can show up in the DNA evidence.[60] That’s exactly what happened to Terrell Gills, who touched a checkout screen at his local Dunkin Donuts. (Sometimes, the DNA record doesn’t even demonstrate that a person visited a crime scene: tiny DNA samples can be transferred to location by a third party.[61]) When the NYPD arrested Gills, investigators failed to ask a simple but essential question: how did his DNA get to the crime scene? Paying the smallest bit of attention to context could have prevented his prosecution as well as the arrests of other individuals with exonerating evidence.[62]

The Problem with Mixed DNA Samples

Crime scene evidence often contains a mixture of several people’s DNA. Unlike traditional DNA testing, mixed DNA can be difficult or impossible to interpret unambiguously.[63] As one expert explained in 2021, “if [analyzing] single-source DNA is like basic arithmetic and a two-person mixture is like algebra, then a complicated mixture is like calculus.”[64] To limit this problem, DNA labs are supposed to test for contamination, identifying when irrelevant DNA is mixed in. Investigators collect “elimination samples” from individuals who were lawfully present at a crime scene to determine whether their DNA is present in the DNA evidence.[65] According to best practices, police departments maintain “elimination databases” of the DNA of individuals who routinely visit crime scenes where DNA evidence is collected (like officers) or who routinely handle DNA samples (like lab technicians).[66]

Against the advice of its own chief forensics officer, and even as crime scene officers have volunteered their own elimination samples, the NYPD’s union has refused to require rank-and-file officers to register their DNA in an elimination database, citing—ironically—officers’ privacy concerns.[67] In refusing to impose such a requirement, the NYPD chooses to degrade the quality of forensic science and put the public at risk, all for their own benefit.

The Problem with Mixed Trace DNA Samples

The NYPD’s refusal to comply with basic measures to prevent DNA contamination speaks to a larger problem: the DNA unit’s astounding willingness to rely on yet-unproven techniques, and to retaliate against public questions. From 2006 to 2017, the NYPD used Low Copy Number DNA Analysis to interpret mixed samples of only a few molecules of DNA: the kind of trace sample hundreds of people might leave on a store’s touchscreen register or front door.[68] Concerned that the technique could land innocent people in jail, Marina Stajic, the OCME’s laboratory director, recommended that a state oversight body demand a validation study for the technique.[69] OCME did not produce the study (it did not have one) and promptly fired Stajic. It later paid her $1 million to settle a lawsuit for illegal termination and retaliation.[70] In a 2015 hearing, the New York State Supreme Court for Kings County rejected the OCME’s Low Copy Number technique, pointing out that “no public laboratory in the United States, other than the OCME lab, employs high sensitivity analysis to develop profiles for use in criminal cases,” adding for emphasis that even the FBI refused to use the technique.[71]

At the same time, the court also threw out another OCME mixed trace sample technique: in-house software for calculating the probability that a mixed DNA sample contains a particular person’s DNA compared to the probability that another random person contributed the sample. As one creator of the F.B.I.’s DNA database testified, the software’s calculations were “not defensible.”[72] Simply put, the math didn’t add up. Another FBI expert who had previously authorized the NYPD to use both Low Copy DNA Analysis and the statistical software wished he could take it back; given what he now knew, he could no longer approve either method.[73]

The OCME’s experiment with unproven DNA techniques continues to this day. It adopted rapid DNA testing for certain purposes in 2017, when its reliability was still in question.[74] It pushed forward with familial DNA analyses for years—a technique that New York State lawmakers paused for a year in 2022, fearing that it put entire families under a cloud of criminal suspicion.[75] Given that the NYPD collects and stores a person’s entire genome, not just their forensic DNA profile, in its database, the possibilities for using unproven and privacy-violating techniques appear unlimited.

Low Quality Matches, Too

The NYPD not only tests stolen DNA, dragnet-derived DNA, children’s DNA, and mixed DNA, it also relies on low quality matches. The strength of a DNA match rests on the number of matching locations. The State DNA index requires that DNA samples have at least eight “core” locations (core locations are designated by the FBI as a national standard for having the highest probative value).[76] The OCME will take six. matching locations, and they don’t have to be “core,” meaning that they may provide lower quality evidence.[77] Apparently, the NYPD can live with a higher likelihood of getting it wrong.

Recklessness at the Lab

At the OCME laboratory, operational problems abound. A 2013 review of the office by the New York State Office of the Inspector General revealed that the OCME was unable to maintain basic performance standards. One technician repeatedly failed competency exams but was allowed to keep working.[78] She mishandled more than 800 rape kits over ten years, swapping samples on at least 16 occasions.[79] A separate review in 2020 revealed that the OCME frequently doesn’t catch its own serious errors—defense lawyers do.[80]

IV.          The NYPD’s Expansive Genetic Lineup Conducts Illegal Searches

Howard Baum is a former OCME scientist who created the city’s first local DNA database. In testimony before the New York City Council in 2020, he described the NYPD’s present-day incarnation of that database as a “vast repository of DNA from dragnets, surreptitious collection, and collection from children.”[81] The database, Baum explained, was created in 1998 to relieve a backlog of forensic DNA cases due to the OCME’s single, slow computer connection to the state DNA database and to CODIS.[82] Maintaining a local database allowed OCME to store and compare local crime scene DNA to local suspect DNA, which was typically collected with a “court-order or consent.”[83] The OCME almost never saw the kinds of surreptitiously collected samples that make the NYPD’s DNA database so objectionable today, according to Baum, who said that his colleagues “would have refused” to enter the DNA of people not accused of any particular crime (e.g., dragnetted DNA), much less children’s DNA collected without a court order or their parents’ consent.[84] 

The OCME can’t justify maintaining a local DNA database to compensate for slow computers anymore. The rogue database breaks the law—New York’s genetic privacy law, its law authorizing the state DNA database, and NYC’s Administrative Procedure Act, which required the NYPD and OCME to provide public notice and gather public input when creating a local DNA database.[85]

V.     Conclusion

The NYPD’s rogue database is illegal. The NYPD has shown its unwillingness to change its most noxious features—and has no accountability for announced reforms (as Fordham Law School Senior Fellow Andrea Flink told S.T.O.P., “because the database is unregulated, it doesn’t matter what the NYPD says it is going to do; they announce their whole audit program every 2 or 4 years.”)[86] The only possible solution is to abolish the NYPD database and to destroy all samples in it. A proposed New York State bill proffers this as the solution. It would require the destruction of any municipal DNA databases in NYS and authorize the regulated, statewide DNA database alone, echoing Article 49-B of New York’s Executive Law.[87]

The NYPD has demonstrated that it cannot be trusted to wield a weapon as powerful as a DNA database—and OCME’s leadership, in testifying that they’re just the scientists,[88] has abdicated its responsibility to protest the reprehensible policies it is tasked with carrying out. The NYPD is utterly unique in outsourcing testing to the OCME; other major police departments do their own DNA testing, opening those laboratories to the scrutiny that is rightfully placed on law enforcement entities.[89] The NYPD’s perpetual genetic lineup is indefensible, unjust, and illegal. It fortifies the systemic racism of the NYPD that New Yorkers have been working for decades to dismantle. In light of its harms and utter lack of regulation, justice demands an immediate end to the database.