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A judge is going to decide whether DNA evidence used to link and charge a Sioux Falls woman in a 1981 homicide can be used at her April trial. 

Attorneys argued Friday morning whether DNA taken from items in a trash pull will be admissible in the trial for Theresa Rose Bentaas, who is facing murder charges in the former cold case of Baby “Andrew” John Doe, an hours-old baby who was found wrapped in a blanket at the corner of what is now 33rd Street and Sycamore Avenue.

Judge Susan Sabers listened to testimony from a state forensic lab specialist and arguments from attorneys, and said she’d issue a decision by Tuesday. Bentaas is scheduled to go to a two-week trial in April. 

More: South Dakota Supreme Court declares judicial emergency

Attorneys for Bentaas, 58, filed a motion to suppress DNA evidence law enforcement obtained from Bentaas’ trash in February 2019, saying testing the DNA without her knowledge or consent was a violation of her Fourth Amendment right against unreasonable search and seizure.

It wasn’t illegal that law enforcement conducted a trash pull, her attorneys said, but they argued police should have requested a search warrant to test the DNA obtained from the items. 

Prosecutors say Bentaas didn’t have a reasonable expectation of privacy in her trash. They shared multiple examples around the country in which DNA obtained from trash pulls was admissible in court. 

The U.S. Supreme Court wrote in a 1988 case out of California 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. 

Previously: Attorneys for Theresa Bentaas look to suppress DNA evidence in Baby Andrew case

Bentaas’ attorney, Clint Sargent, said in court that Bentaas was a free person and had a privacy interest. 

“She never told anyone that she was pregnant,” he said, because she had an expectation of privacy and that testing the DNA on a suspicionless warrant violated her constitutional rights. 

“How does a free person protect themselves from law enforcement having access to their DNA?” Sargent said. 

More: Prosecutors in murder case: DNA evidence from Theresa Bentaas trash pull should be allowed

Deputy Minnehaha County State’s Attorney Randy Sample said Bentaas’ case was similar to a drug case, in that police had information that the family might be linked to the case, so they did a trash pull, tested in the items and then, based on the results, requested a search warrant for buccal swabs of Bentaas and her husband.

“There’s nothing unreasonable about what law enforcement does,” Sample said. “They were tasked with trying to identify a deceased baby. There is no claim (of privacy). She lost that when she left the baby in the ditch.” 

The case had formerly stalled until a detective in 2009 decided to revisit the case and use DNA technology not available at the time of Baby Andrew’s death. 

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. 

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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