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South Dakota (NBC)(03/16/20) On Feb. 11, 2019, undercover detectives removed the trash from outside a 57-year-old paralegals home in Sioux Falls, South Dakota, in hopes of finding her DNA.

Police were led to Theresa Bentaas home by a new investigative technique that combines direct-to-consumer genetic testing and genealogical records.

The detectives believed they were close to solving a crime that had haunted the city for 38 years: a newborn left to die in a frigid roadside ditch, tears frozen to his cheeks.

Once theyd taken the garbage from Bentaas home, the detectives pulled out beer cans, water bottles, and cigarette butts, according to court documents.

They sent the items to a state crime lab, where analysts extracted DNA that they said might belong to the babys mother.

Citing those results, one of the detectives got a search warrant to obtain a DNA sample directly from Bentaas.

When he showed up at her home, Bentaas admitted to leaving the baby in the ditch in February 1981 after secretly giving birth, saying shed been young and stupid and scared, according to an affidavit submitted by the detective.

A few days later, according to court documents, Bentaas DNA swab revealed her as the babys likely mother. Police then arrested her for murder.

Bentaas has since pleaded not guilty, and now, on the eve of her trial, she is fighting the charges against her.

One of her main arguments is that police violated her constitutional protections against unreasonable searches when they used her trash to find her DNA and develop a genetic profile, without first asking a judge to sign a search warrant.

People do not have a privacy interest in the things they throw in the trash, but they definitely have privacy interest in their DNA that is on those items, Bentaas lawyer, Clint Sargent, said in an interview. And theres nothing a free person can do to not deposit DNA on the stuff they deal with every day.

The Minnehaha County prosecutor handling the case against Bentaas did not return a request for comment. Neither did a spokesman for the Sioux Falls Police Department.

The practice of going through a potential suspects garbage for evidence is not new, but it is facing new scrutiny from civil liberties groups and privacy advocates who see danger in law enforcements unchecked power to obtain peoples DNA, which is unavoidably left on just about everything anyone touches, without them knowing about it.

The tactic has grown more frequent with the increased use of investigative genetic genealogy, which relies on DNA and ancestry records to find people with links to DNA left at a crime scene.

Police try to confirm the connection by obtaining the persons DNA, often through surreptitious means.

Without protections, every one of us is vulnerable to having our DNA secretly tested and scrutinized by police without judicial oversight, said Nathan Freed Wessler, an attorney with the American Civil Liberties Union, who specializes in technology and privacy.

The ACLU, along with the Electronic Frontier Foundation, a digital rights nonprofit, filed a joint brief Monday in the Bentaas case in Second Judicial Circuit Court in Minnehaha County, arguing that while it is legal for police to rifle through someones trash for evidence, extracting and sequencing a DNA sample found on that item should first require going to a judge for a warrant. Not doing that, the groups said, violates the Fourth Amendment of the U.S. Constitution.

The filing is the first in what the groups say will be a national effort to challenge cases in which police have used trash and other abandoned items to secretly access a potential suspects DNA.

Among the cases they are watching is the upcoming trial of an Orlando, Florida, man charged with the 2001 killing of a college student.

The goal, they say, is to persuade judges to require police to first come to them for permission, in the form of a warrant.

Our DNA can reveal so much about us that our genetic privacy must be protected at all costs, an Electronic Frontier Foundation lawyer wrote in a blog post this week.

Prosecutors say that argument is a stretch. They point out that the Supreme Court has ruled that it is OK for police to search through someones garbage, and criminal defendants have largely failed in the past to challenge the collection of DNA from trash and other items.

The Minnehaha County states attorney made those assertions in a brief opposing Bentaas motion to suppress the DNA evidence against her.

Duffie Stone, president of the National District Attorneys Association and a prosecutor in South Carolina, said police are allowed to go through someones trash or collect abandoned objects, regardless of whether they use those items to find DNA.

Making it more burdensome to test abandoned items for DNA would slow criminal investigations, which often rely on trying to find DNA not only from things left in the trash but also all sorts of objects found at crime scenes, from guns to gum, Stone said.

Theyre trying to extend the expectation of privacy to shedded DNA cells, Stone said. I dont think the courts are going to go with that, and from a practical standpoint it would be impossible for law enforcement to work with that on a regular basis.

Elizabeth Joh, a professor at the University of California, Davis School of Law, who studies criminal procedure and police surveillance, said that as covert collection of DNA becomes cheaper and easier, there need to be more rules, from the courts or lawmakers, covering it.

There is basically nothing regulating or guiding the police on what to do other than their own internal guidelines, Joh said.

On Friday, Bentaas defense team and Minnehaha County prosecutors argued the DNA collection issue before Second Circuit Court Judge Susan Sabers, who said shed make a decision by Tuesday, Sargent, Bentaas defense lawyer, said.

Bentaas trial is scheduled to begin April 20.

The trial could mark the final chapter in a mystery that has haunted Sioux Falls for nearly four decades.

The baby died years before DNA became a crime-solving tool. Residents arranged for a funeral and burial and named the boy Andrew, which was inscribed on his gravestone.

In 2009, a detective, hoping to use new DNA analysis methods to find a new lead, arranged for the body to be disinterred, according to court documents, but the babys DNA profile wasnt closely related to any profiles in the states crime database.

Last year, police turned to investigative genetic genealogy, which seeks DNA links outside of crime databases.

Investigators built a family tree that pointed them to Bentaas, according to court documents.

Her arrest triggered a wave of relief across Sioux Falls.

Lee Litz, who found the baby at the side of the road, told a reporter last year that he considered the boy his long-lost son and saw Bentaas arrest as justice for a community that refused to let his death go forgotten.

There are times when I wish I hadnt found him and there are times that Im glad I did, Litz told the Argus Leader newspaper. I just wish I found him earlier, when he was still alive.

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Woman fights the murder charge of killing her own infant saying police illegally obtained DNA from her trash - KTVE - myarklamiss.com