ACLU likens gathering of evidence to TV dramas

Toledo lawyer raises privacy issue on DNA

Boxer Martin Tucker is tended to during a match at the Huntington Center on April 28. The FBI said it obtained a discarded swab that was used to stop his bleeding to get his DNA as part of an investigation.

Methods used by the FBI to collect a DNA sample from a Toledo boxer suspected of a 2009 Michigan bank heist were similar to "something you'd see on CSI," an employee of the American Civil Liberties Union said Friday.

According to a complaint filed Monday in U.S. District Court in Detroit, the FBI collected a bloodied cotton swab from Martin Tucker's boxing match this spring and used the DNA to connect Mr. Tucker to a 2009 robbery at the Monroe County Community Credit Union.

Chris Link, who works for the ACLU in Cleveland, said she has never heard of a case where authorities employed such a creative means to obtain DNA, except on television.

"It's reminiscent of a TV show, because most people don't think of that," Ms. Link said. "We release bodily fluids all the time in places the average person doesn't think of them as being discarded, which is the standard the court uses."

Toledo attorney Jerry Phillips said the FBI's method was not only entirely legal, but also clever.

"It's thinking outside the box," he said. " 'How can we get DNA?' You think about what this person does, either for a living or sports or recreation, and you think, 'Would there be DNA anywhere?' "

The only potential question, Mr. Phillips said, is whether the boxer had a privacy expectation with the swab, which could be claimed if the FBI removed it before it was technically "garbage."

He speculated, however, that FBI Special Agent Robert Schmitz waited until waste from the Huntington Center fight was officially discarded before removing it.

"It seems to me they did the right thing," Mr. Phillips said. "They probably eliminated any questions about privacy rights when they waited to seize it."

The FBI and U.S. Attorney's Office in Detroit would not say exactly how or when Agent Schmitz obtained the swab.

Lamar Wright, 29, of Toledo was Mr. Tucker's "cut man" on that April 28 fight night, and said a swab shortage led him to use liquid medication to clean his boxer's cuts.

"All this stuff is funny to me, because the FBI won't comment on how they got the swab," Mr. Wright said.

Everything was discarded into a fight bucket cleaned daily with bleach, and that night the bucket contained swabs and other material from eight boxers, he said.

"Even if I did put any Q-tips in the bucket, I don't understand how they could extract blood from him when there are eight fighters and blood and bleach in that bucket," Mr. Wright said.

The ACLU's Ms. Link said such evidence gathering is court-tested.

"I can't imagine the public feels good about it, especially bodily fluids. You can't control where you leave them," she said. "But the courts have upheld those types of things."

The credit union was robbed on July 16, 2009, by two gunmen who stole $5,379 and fled with a third man driving. The robbers left behind a trail of evidence, including rubber gloves and a black mask, when they abandoned the car in Toledo.

One of the two robbers was easier to identify, Monroe County Sheriff's Sgt. Heath Velliquette said.

Quentin Sherer, 32, was arrested in November after police matched DNA found on crime-scene evidence with his; he was in their system because of a prior conviction.

Authorities later identified Mr. Tucker as a friend of Sherer's who matched one of the suspect descriptions. Once Special Agent Schmitz obtained the blood sample, the FBI was able to link Mr. Tucker to DNA found in the robbery evidence.

Sergeant Velliquette said his agency has embraced unorthodox means to obtain DNA. "It's like when you offer someone a cup of coffee and then obtain their DNA off that coffee cup," he said.

Mr. Tucker was charged Monday with one count each of bank robbery and using or carrying a firearm during a crime of violence.

Information about his detention or future court dates was not available Friday.

Contact Mel Flanagan at: mflanagan@theblade.com or 419-724-6087.