Rape case presents tricky legal question

One week after a rapist kicked in a Downers Grove woman's apartment door and attacked her, an anonymous tipster called police with a potential suspect's name.

The man matched the victim's description of her attacker. Six weeks later, detectives tracked Larry R. Barrett to a downstate jail in Mount Vernon, Ill., where he was being held on unrelated property-damage charges.

There was one problem.

Barrett, 22, refused to give a voluntary DNA sample to test against evidence collected from the Oct. 9, 2006, rape on Prentiss Drive. Prosecutors advised police they lacked enough evidence to get a search warrant.

So, sheriff's deputies seized Barrett's county-issued toothbrush during a Dec. 1, 2006, search of his Jefferson County jail cell. Authorities said forensic scientists later confirmed Barrett's DNA on the toothbrush matched that collected in the rape kit.

At issue, though, is whether authorities violated his Fourth Amendment right against unreasonable searches and seizures.

Justices have ruled jails and prisons are not beyond the U.S. Constitution's reach, but they severely limited those rights to balance them against the need for institutional safety.

Steve Dalton, a senior DuPage County assistant public defender, asked a judge to toss out the evidence. A court hearing began Tuesday.

"The personal property was seized for the purposes of a criminal investigation and not institutional security," Dalton said. "(It) is illegally seized evidence and should be suppressed."

He said Barrett was never a suspect until the anonymous tip, which came from a female using a pay phone in Southwest suburban Summit, less than a mile from the defendant's home. Prosecutors initially advised police the tip and similar physical description were not enough to get a judge to sign off on a DNA search warrant.

Prosecutor Liam Brennan agreed the cell search had nothing to do with security. Still, he argued the law is on his side. Though some courts have frowned upon evidence-collecting searches, the prosecutor noted, a greater majority found inmates such as Barrett have no legitimate expectation of privacy, regardless of what motivated the search.

Furthermore, he said, a warrantless search is allowed in circumstances where there is a diminished expectation of privacy if reasonable suspicion of a crime exists.

Before forensic experts confirmed the preliminary DNA match, police also learned the shoes Barrett was wearing when arrested in Jefferson County matched the impression found on the rape victim's door -- which the assailant had kicked open.

After being confronted with the shoe-print evidence, authorities said Barrett made incriminating statements. The defense argues those statements should be tossed because they are tainted, too.

DuPage Circuit Judge Michael Burke has not ruled yet. The court hearing on the issue was continued until later this month. Barrett remains in the DuPage County jail. He is charged with aggravated criminal sexual assault, home invasion and burglary.