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Attorneys for a woman charged with murder in a 1981 former cold case involving the death of a babywant to suppress DNA evidence police obtained from her trash, saying doing so violated her rights.

Theresa Rose Bentaas, 58,was chargedwith first- and second-degreemurder in March 2019 after DNA evidence matched her to a baby who in 1981 was foundwrapped in blankets.

Baby John Doe, named Baby Andrew by the anonymous donor who paid for his funeral, was found in what is now 33rd Street and Sycamore Avenue, with the umbilical cord still attached.

Bentaas' privately retainedattorney, Clint Sargent, on Friday filed a motion to suppress DNA extraction, testing, sequencing and profile evidence. He also filed more than 30 pages in briefs supporting the motion.

Theresa Bentaas(Photo: Minnehaha County jail)

Sargent and co-counsel Raleigh Hansman requested the following evidence be excluded from trial, saying it violated her Fourth Amendment rights:

Laboratory reports, interviews of Theresa and her husband Dirk Bentaas andbuccal swabs of Theresa and Dirk Bentaas.

"As a free member of the general public, law enforcement's extraction of Bentaas' DNA from the items pulled from the trash and the subsequent creation of her DNA profile for the testing of Baby Doe case constitutes an unreasonable search under the Fourth Amendment," Bentaas' attorneys wrote in the brief.

More: Theresa Bentaas posts bond, released from jail

Pulling the trash was lawful under both South Dakota and federal law, but extracting the DNA from the items from that trash pull is a "separate invasion of privacy...that must be considered a separate search under the Fourth Amendment,"the brief states.

If a Fourth Amendment violation is brought up in a case, the defendant must establish a factual connection between the alleged constitutional violation and the challenged evidence.

If Bentaas were to prove the evidence is "fruit of the poisonous tree,"the burden would shift back to the government to show that evidence is untainted.

The brief also states if there wouldn't have been an "illegal search and seizure of Bentaas' DNA," a warrant allowing law enforcement to get swabs from Bentaas or her husband wouldn't have been issued.

The brief goes on to say thatan affidavit in support of a search warrant for Bentaas' buccal swabs didn't showa "fair probability" that evidence of a crime would have been found from Bentaas' buccal swab.

"The decision to seek a search warrant for Bentaas' DNA only after receiving the DNA results from the trash pull items speaks for itself," Sargent writes.

The grave of Baby Andrew John Doe, an infant who was found dead in a ditch in 1981, is shown. Police arrested Theresa Rose Bentaas decades later on Friday, March 8, 2019 after determining through DNA that she was the mother.(Photo: Loren Townsley / Argus Leader)

The brief accuses law enforcement of exaggerating lab results. In January 2019, when Parabon Labs got a DNA match that was possibly "up to a third cousin" in the family tree for Baby Andrew, a detective took the information to put together a basic family tree, according to the brief. The family tree was shared with a Parabon genealogist, who recommended getting follow-up DNA.

Baby Andrew: Theresa Bentaas appears in court, trial date set

"Under the guise of the trash pull, Detective Mertes circumvented the search warrant requirement for DNA and deprived Bentaas of her Fourth Amendment right against unreasonable search and seizure," Bentaas' attorneys wrote in the brief.

The state's "failure to obtain a search warrant to extract, test and sequence the DNA on the items submitted to the SD Forensic Lab violated Bentaas' Fourth Amendment right against unreasonable search and seizure," the brief states.

The state had not filed a response as of Friday.

Up until March 8, 2019, Bentaas was a member of the general public, the brief goes on to say, which gives her greater privacy interest in her DNA.

Baby Andrew's body was exhumed in 2009and sent via FedEx to the University of North Texas, were DNA was extracted. The body was returned to Sioux Falls, where it was buried at St. Michael's Cemetery on Cliff Avenue.

From 2010 to 2018, the DNA profile of Baby Andrew was run through the South Dakota DNA database once per year. No matches were found.

On Jan. 24, 2019,Parabon NanoLabs, Inc. a Virginia company to which Sioux Falls police had sent Baby Andrew's DNA completed a "Genetic Genealogy Report," a lead-generation tool to identify remains by making connections through DNA and genealogy.

A DNA profile found possible family trees, include "what they had found so far was approximately a third cousin which was fairly far out from the direct DNA of this baby," according to the brief.

That report led police to a Sioux Falls couple, Theresa Rose (Josten) Bentaas and Dirk Bentaas.

Police on Feb. 11, 2019, did a trash pull at Bentaas' home. They seized cigarettes and cigarette butts, cotton swabs, Kleenex with hair, hair with yellow cardboard, ear plugs, water bottles, glass bottles, beer cans, beer bottles and dental floss.

Theresa Rose Bentaas, 57, was arrested Friday morning after police determined through DNA that she was the mother of Baby Andrew. Argus Leader

Police obtained a search warrant for buccal swabs from Theresa and Dirk Bentaas.

Female DNAfound on a water bottle, Coors Light can and cigarette butts from the trash pull "could not be excluded as being from the biological mother of Baby (Andrew) Doe." DNA from two different men was also linked to Baby Andrew.

Police interviewed Dirk and Theresa Bentaas later in February 2019. Police did a cheek swab on both. In that interview, Theresa Bentaas said she was "young and stupid" and admitted to being pregnant in 1980-1981.

Test results from the cheek swabs showed "extremely strong evidence" to support the biological relationship between Theresa Bentaas, Dirk Bentaas and Baby Andrew.

Theresa Bentaas was arrested in March 2019. She posted bond and has been out of custody sinceMay 2019. Bond conditions included that she be required to wear a GPS ankle monitor, hand over her passport, check in at her attorney's office once a week and live with a family member.

Bentaas' trial is scheduled for April. Her next court appearance is scheduled in March.

Email reporter Danielle Ferguson at dbferguson@argusleader.com, or follow on Twitter at @DaniFergs.

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Attorneys for Theresa Bentaas look to suppress DNA evidence in Baby Andrew case - Argus Leader

"The Framers ... conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men." -- Justice Louis Brandeis (1856-1941)

While we were all consumed by impeachment, a pernicious piece of legislation was slowly and silently making its way through Congress. It is a renewal of Section 215 of the Patriot Act.

The Patriot Act of 2001 has three sections that are scheduled to expire on March 15. One of those sections is the infamous 215, which authorizedthe federal government to capture without a warrant all records of all people in America held by third parties.

Do we really want the federal government to spy without warrants? How can Congress, which has sworn to preserve, protect and defend the Constitution, legislate such a blatant violation of it? Here is the backstory.

HOUSE REPUBLICANS BOYCOTT INTEL HEARING, ACCUSE SCHIFF OF IGNORING FISA ABUSE

After the Constitution was ratified in 1789, it was soon amended to recognize the existence of natural rights and to keep the government from interfering with them. As Brandeis wrote 140 years afterward, the most comprehensive of those rights was the right to be let alone, which today we call privacy.

To secure that right, the Fourth Amendment was ratified. The purpose of the Fourth Amendment was to prevent the government from utilizing general warrants and to require judicially authorized search warrants issued under narrow circumstances. James Madison, who drafted the Constitution and the Bill of Rights, shared the hatred that colonists-turned-Americans had for general warrants.

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A general warrant was a document issued by a secret court in London authorizing the bearer of the document, usually a British soldier or intelligence agent, to search wherever he wished and to seize whatever he found. The applicant for the warrant needed to demonstrate to the court only that the warrant was intended to unearth something that the government wanted. Because these warrants did not specify the object of the search, there was no limit to them.

Hence Madison's language in the Fourth Amendment preserving privacy but permitting the government to invade it only upon a showing, under oath, of probable cause of crime, and then requiring the warrant to specify in writing the place to be searched or the person or thing to be seized.

After 9/11, in the collective spirit of fear, timidity and subservience to the presidency, and in utter disregard for its members' oaths to uphold the Constitution, Congress enacted the Patriot Act. It permits one federal agent to authorize another federal agent to search and seize whatever the latter wishes to look at and capture so long as it is in the possession of third-party financial institutions.

Over the years, the definition of financial institution has been radically expanded by both legislation and presidential executive orders so as to include nearly every conceivable entity that has any records about any person in America -- from banks to hospitals to lawyers to merchants to credit card issuers to telecoms and computer service providers and even the post office.

At the same time that the Patriot Act was being expanded, the National Security Agency -- America's 60,000-person-strong domestic spy apparatus -- was not even pretending to follow legislation.

We know from Edward Snowdens revelations -- which have never been disputed by the government -- that since 2003, the NSA has captured not only the records of Americans held by third parties but also the records of every keystroke touched by every person in America and every telephone call transmitted over fiber optic cable. That includes every email, text message and piece of data -- even what was deleted. This warrantless mass surveillance continues today unabated.

Also unabated and equally unlawful and unconstitutional is the governments use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even turned off. The government, which either owns the cell towers or, under Section 215, may captureall the data the towers amass, can effectively follow any person with a mobile device in real-time.

How does the government get away with this?

The feds have labored mightily to keep all of these constitutional violations as far from judicial scrutiny as they can. They rightly fear -- they know -- that all of this violates the Fourth Amendment.

If their nefarious behavior, which we know they have used on the president of the United States and on the Supreme Court, comes under judicial scrutiny, the feds will argue that the Fourth Amendment only pertains to criminal prosecutions and not to domestic spying; thus, they can ignore it when they spy.

They have made up this argument out of thin air. There is neither a hint in the language of the amendment nor a whiff in its history to support that argument.

Has the government lost sight of our birthright? It is life, liberty and the pursuit of happiness -- not to mention getting into heaven. How can we do any of this if the government we have hired to preserve our liberty is surreptitiously destroying it?

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Brandeis' language about being let alone was written in 1928, in a dissent to a Supreme Court opinion that failed to recognize the right to privacy. Today, his dissent is the law of the land, but the feds ignore it.He wrote that there is more to life than owning material goods. There is the fulfillment of spiritual, intellectual and cultural goals and the achievement of intimate aspirations, none of which are the government's business.

Why do we permit the government to assault our most basic freedoms, under the law or under the table?

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

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Judge Andrew Napolitano: Government is spying on us without warrants, in violation of Constitution - Fox News

Join the Star City Thinkers discussions.

We the people have rights given by the Constitution and laws of the land. Owners of producing property, including the providers of high tech products, have rights given by the Constitution and laws of the land. BUT now as in the past laws need to be changed and interpretations of the Constitution may need to change OR the Constitution, itself, may need to be changed.

We will complete a short review of Net Neutrality whereas, there is a conflict between the property rights of original providers and those businesses who wish to hitch a ride on the train; as well as, issues of what is best for the consumers. See ProCon.org link below.

We will then look at 4th amendment issues where there is conflict with privacy issues. See Heritage Foundation link below.

KEY REVIEW MATERIAL:

Should Net Neutrality Be Restored? - Top 3 Pros and Cons

https://www.procon.org/headline.php?headlineID=005390

The Fourth Amendment and New Technologies

https://www.heritage.org/report/the-fourth-amendment-and-new-technologies

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Property, Privacy and New Technology - Roanoker

Photo: Gage Skidmorecourtesy Flickr underCreative Commons CC BY-SA 2.0

Clips from a 2015 speech Michael Bloomberg gave at the Aspen Institute should be playing on mainstream news channels just as often as Bloombergs campaign ads.

95 percent of your murdersmurderers and murder victims fit one M.O. You can just take the description, Xerox it, and pass it out to all the cops, Bloomberg said. They are male, minorities, 16to 25. Thats true in New York. Thats true in virtually every city. And the way you get the guns out of the kids hands is to throw them up against the walland frisk them.

Bloomberg also said, And then they start Oh, I dont want to get caught, so they dont bring the gun. They still have a gun, but they leave it at home.

Such is the tough New York talk Bloomberg uses in safe spaces like Aspen.

If you can stop them from getting murdered, I would argue everything else you do is less important, Bloomberg said. And thats a good point, but it comes with a deceptive premise he expects us to buy into. Bloomberg, you see, often argued that the stop-and-frisk policy New York City used while he was mayor was necessary, and there is little doubt it saved lives in New York Citys toughest neighborhoods. But the thing is, when you take away one constitutional rightin this case, our Second Amendment right to keep and bear armsyou end up in a position in which you need to diminish another constitutional rightin this case, the Fourth Amendment right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizuresin order to keep people safe.

Bloombergs associates knew what he said at the Aspen Institute wasnt politically correct; as a result, after he gave the speech, representatives for Bloombergs team actually asked the Aspen Institute not to let people hear or see the video footage,according to the Aspen Times.

Bloomberg might be the $61 billion man, but buying an election in a free society still means controlling your image. In this case, however, the audio leaked out.

As this just isnt a position todays Democrats favor, just before Bloomberg entered the race for president last November he tried to sidestep his record. I cant change history. Today, I want you to know that I realize back then I was wrong, and I am sorry, said Bloomberg, referring to the stop-and-frisk policy hed bragged about just a few years before.

To put this in context, Bloomberg, when he was mayor of New York City, tried to be one of the common folk by riding the subway to work (in this case, City Hall), but, regardless, its a safe bet that he was never stopped and friskedmayors, especially those with security details, just dont get that treatment.

It is also a safe bet that he never needed a self-defense gun, as security details are paid to handle all that.

Now Bloomberg is running for president. If he somehow wins the presidency, the first thing hed like to do is disarm every average American citizen. He mistrusts the individual American so much that he doesnt even think the everyday hero named Jack Wilson, a concealed-carry permit holder and member of the West Freeway Church of Christ in White Settlement, Texas, who stopped a murderer, should have the right to carry a self-defense gun.

Its the job of law enforcement to have guns and to decide when to shoot. You just do not want the average citizen carrying a gun in a crowded place, said Bloomberg just after Wilson had saved lives in that church.

Presidential races are filled with hyperbole and pageantry, but its revealing things like these statements from Bloomberg that build or destroy candidacies.

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Bloomberg Said What About Guns and Crime? - America's 1st Freedom

Feb 13th 2020

GENES CAN tell tales about you, from who your ancestors were to how likely you are to develop a range of diseases. And it seems probable that in the future they will tell more: your personality type, perhaps, or your intelligence. For these reasons, many countries have laws limiting what use employers and insurance companies can make of such information. America, for example, has the Genetic Information Nondiscrimination Act, which makes it illegal for health insurers and employers to use genetic information to discriminate against customers and employees.

There is much, however, that genes cannot reveal. They are blind to what you eat, how you exercise, how safe the place you live in is, how you unwind at the end of the day and which god you worship. Just as well, you might think, considering how easy it is to obtain samples of DNA from saliva, sweat or hair, and how cheap it is becoming to analyse such samples. But it is not just DNA that people scatter to the wind as they go about their business. They shed a whole range of other chemicals as well, in their breath, their urine, their faeces and their sweat. Collectively, and somewhat inaccurately, these molecules are referred to as metabolites. Some truly are the products of metabolic activity within peoples bodies. Others are substances an individual has come into contact with, or consumed or inhaled. All, though, carry information of one sort or another.

Until recently this did not matter much, for two reasons. One was that, in practice, taking samples for analysis required either voluntary collaboration or legal duress. It could not be done clandestinely. The other was that interpreting the complicated patterns of metabolites is hard. But both of these obstacles are now being overcome.

The most common way of analysing metabolite content is gas chromatography-mass spectrometry. This technique sorts molecules by their weight, producing a pattern of peaks that correspond to different substances. But the same weight can be shared by many molecules, so the results may be ambiguous. Nor, even if a molecule can be identified unambiguously, is its wider significance always obvious to a particular investigator.

There are, however, a lot of information sources out there, in the form of publicly available metabolite databases. And last year a team led by Pieter Dorrestein of University of California, San Diego, invented a way, which they call a metabolite search engine, of linking them up so that a sample can be compared simultaneously with the contents of all of them.

The databases themselves are getting better, too. According to Dr Dorrestein, researchers in the field were able, as recently as four years ago, to identify only 2% of the metabolites found in samples. Today, that has increased to 6% and is climbing quickly. It is reasonable, he says, to assume that in another four years we will be able to annotate 20% of the molecular signatures that we encounter, based on the advances that are being made.

Another area of progress is the type, size and state of preservation of samples that can be interrogated. No longer are blood, urine or breath required. Sweat, tears, saliva and even dental plaque will do. A study just published by Feliciano Priego-Capote at University of Cordoba, in Spain, for example, shows it is possible to extract much meaningful information from even a dried-up drop of sweatindeed, Dr Priego-Capote is able to find in dried sweat substances that are undetectable at the moment in fresh perspiration.

Such information can reveal a lot. Your god? Regular exposure to burning incense, and thus frequent visits to a church that uses it, will be detectable from the chemicals in the smoke. Not a Christian? Kosher and halal diets are detectable by the absence of metabolites from certain foodstuffs those diets forbid. Your out-of-office activities? Habits like drinking, smoking and narcotic use are visible as numerous chemicalsnot merely the active pharmaceuticals which produce the relevant high or low. Your exercise levels? These are flagged up by lower than normal levels of things like leucine, glycerol and phenylalanine. Your local environment? Breathing in polluted air has a marked impact on the profile of your metabolites. Your general health? Illnesses ranging from Parkinsons disease (altered levels of tyrosine and tryptophan) to diabetes (sugars and sphingomyelin) leave abundant metabolic traces. The day is coming soon, observes Cecil Lewis, a molecular anthropologist at University of Oklahoma, who is studying the matter, when it will be possible to swab a persons desk, steering wheel or phone and determine a wide range of incredibly private things about them.

In contrast with DNA, the use to which knowledge of metabolites might be put has little legal restriction. Dr Lewis, and others like him, worry about the consequences of this. At the moment, sampling for alcohol or illegal drug use, say, has to be overt, because it involves a blood, urine or breath test. That is true regardless of who is collecting the sample, whether it be the police or an employer. This also keeps purposes clear. A firm might feel it has the right to test employees for drug use, and the law might support that. But techniques like Dr Priego-Capotes make it easier, as Dr Lewis observes, to sample clandestinely, and bring a temptation to push back the boundaries of what is being searched for. They would, for example, allow companies to detect, if they chose to look, such private matters as whether an employee was taking antidepressants.

Metabolite data, even the sort obtained openly, will also be of interest to medical-insurance companies, who may insist on the provision of samples as a condition of the provision of cover. They, too, might take an interest in matters of diet and exercise, penalising those who do not conform to prescribed healthy regimes.

The police may be tempted to push the boundaries as well. The fourth amendment to Americas constitution protects against unwarranted searches and seizure of evidence. This means it is hard to force someone to give a sample. But if obtaining such merely requires taking a swab of a surface in a public placeperhaps a keyboard someone has just usedthe amendment is unlikely to apply.

That is not necessarily wrong, if it means more criminals are caught and convicted. But it needs to be thought about carefully, because many metabolites are sticky. Cocaine is a case in point. Studies have shown that as many as two-thirds of the dollar bills in circulation in America carry traces of this substance, which might thus end up on the fingertips of the innocent, as well as the guilty.

Perversely, this might even help someone who really had taken the drug. The law in many jurisdictions permits employers to fire employees for unlawful conduct, even if it happens outside the workplace. But as Michelle Terry of WKS Law in Los Angeles, observes, given how sticky research has shown cocaine metabolites to be, it is hard to guess how the courts would rule if someone lost their job for testing positive, yet claimed never knowingly to have touched the stuff.

This article appeared in the Science and technology section of the print edition under the headline "Shed-loads of chemicals"

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People leave molecular wakes that may give away their secrets - The Economist