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Prosecutors are asking a judge to deny defense attorneys’ request to exclude DNA evidence used to link and charge a Sioux Falls woman in a nearly 40-year-old homicide case, saying the evidence is similar to a fingerprint or mugshot. 

Prosecutors referenced national cases that have allowed DNA evidence obtained without a warrant to be used in court in their response to Theresa Rose Bentaas’ attorneys’ motion to suppress DNA evidence. 

Bentaas, 58, was charged with first- and second-degree murder in March 2019 after DNA evidence matched her to a baby who in 1981 was found wrapped in blankets. She is scheduled for a three-week jury trial in April. 

Attorneys for Bentaas in February filed a motion to suppress from trial the DNA evidence obtained and tested from a trash pull at Bentaas’ house, saying testing the evidence without a search warrant violated the expected privacy given to citizens by the Fourth Amendment. 

Prosecutors Minnehaha County State’s Attorney Crystal Johnson and Deputy State’s Attorney Randy Sample in their response said both the U.S. and South Dakota Supreme Courts have not adopted a “blanket rule” about giving trash constitutional protections against unreasonable searches and seizures. 

Bentaas’ attorneys, Clint Sargent and Raleigh Hansman, acknowledged in their motion that the trash was pulled legally.

But they argue police should have obtained a search warrant to test the DNA. 

The South Dakota Supreme Court hasn’t addressed that specific issue, but prosecutors in their response, filed March 2, pointed to examples in other states where DNA found on items — such as water bottles left in interrogation rooms, spit on a public sidewalk or saliva from an envelope — was admissible in court. 

Prosecutors cited the U.S. Supreme Court’s note in a 2013 Maryland case that processing a DNA sample “does not intrude on a person’s privacy in a way that would make his DNA identification unconstitutional.” 

A DNA profile is useful to police because “it gives them a form of identification to search the records already in their valid possession,” the response states. In this case, the DNA for identification is “no different” than matching an arrestee’s face to a wanted poster, matching tattoos to known gang symbols or matching someone’s fingerprints to a crime scene. 

“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. 

Prosecutors also cited a 1988 case, California v. Greenwood, in which the local court said a warrantless trash pull violated the Fourth Amendment. The U.S. Supreme Court reversed that decision, noting that it is “common knowledge” that garbage bags left on a public street are “readily accessible” to passersby, and even the third party trash collector, “who might himself have sorted through” the trash or allowed police to look through it. 

The majority of state courts follow that decision and follow the rationale that individuals who put their garbage out for collection “do not have a reasonable expectation of privacy,” the brief states.

A hearing on the motion to suppress evidence is scheduled for Friday.  

How we got here 

A Sioux Falls Police detective decided to look at the 1981 case again in 2009, hoping DNA evidence could be tested with technology that wasn’t available at the time of the crime.

Baby “Andrew” John Doe’s body was exhumed in 2009 and 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.

Police used Ancestry.com, findagrave.com and other public domain research websites to create a family tree, which led them to Theresa Bentaas’ parents. 

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. 

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

Female DNA found 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. The results showed that Bentaas and her husband Dirk Bentaas are “18.2 trillion times more likely” to have the same genetic results with Baby Andrew than an unrelated person. 

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 scared when she admitted to being pregnant in 1980-1981. 

Theresa Bentaas was arrested in March 2019. She posted bond and has been out of custody since May 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. 

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

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