Arrest in 2007 cold case is Wichita police’s first using genealogy data. They hope for more

Wichita police used a newer, somewhat controversial technique to make an arrest last week in a 2007 cold case.

Ted Foy, 52, of Augusta was arrested Monday on suspicion of two counts of rape, two counts of aggravated sexual battery and one count of aggravated criminal sodomy in connection with a Nov. 13, 2007, case in southeast Wichita.

It was the department’s first arrest using investigative genetic genealogy, which takes a DNA sample from an unsolved case and tries to match it to data people have submitted to genealogy websites. The higher the percentage match, the closer the relationship between that person and the potential suspect. From there, police can build family trees, narrow it down to a suspect and investigate if that person could have committed the crime. .

Police started using investigative genetic genealogy a few years ago. Investigators opened this case in 2020 and spent well over 100 hours on it, according to Capt. Christian Cory. The police department has five other cold cases, all murders and sexual assaults, it is using genealogy to investigate, he said.

Cory expects some of the other cold cases will be solved.

“I’m very happy that there’s another tool that we can use to bring justice to the victims in these cold cases,” he said.

The police department’s public information unit initially denied The Eagle’s request to speak with a police officer about the case but made Cory available to speak with other media. The police department later allowed The Eagle to speak with Cory.

He wouldn’t talk about the specifics of the case, only about generalities in using investigative genetic genealogy. Details could emerge if a judge releases the probable cause affidavit in the case.

Cory wouldn’t say why the Air Force Office of Special Investigations Cold Case Team was involved, only that they had a special interest in the case. The incident happened in the 1900 block of South Tara Falls, less than five miles from McConnell Air Force Base.

Police departments increased use of investigative genetic genealogy after it was used to catch the Golden State Killer, who terrorized California in the 1970s and 1980s and had been suspected of at least a dozen killings and dozens more rapes.

Joseph James DeAngelo Jr. was arrested in 2018. He admitted to being the infamous killer and will spend life behind bars.

However, his arrest raised concerns about catching a suspect by using a distant family member’s DNA. Genealogy companies either volunteer or can be ordered by a court to allow police use of their databases.

Cory said, in general, that connection to a distant relative is only the start of the investigation, which would often require getting DNA from closer family members, and hopefully the suspect, and creating a case that shows the person could have committed the crime.

Using the databases to start an investigation is “blatantly unconstitutional,” according to Albert Fox Cahn, the executive director of Surveillance Technology Oversight Project, a privacy and civil rights organization.

“The Fourth Amendment requires particularity when you are getting a warrant … with these sorts of dragnets, you are using probable cause against one person to invade the privacy of millions,” Cahn said. “This sort of general warrant is completely antithetical to what the framers of our constitution intended in the Fourth Amendment.”

Submitting your DNA to genealogy companies has become popular in recent years.

He said tens of millions of Americans have uploaded their DNA, giving police the ability to profile nearly everyone in the country. GEDmatch, one of the companies investigators used to catch the Golden State Killer, says it has records to access 350 million people.

“Even for those of us who would never give our DNA sample to a private company, our relatives have often done it for us,” he said. “If you want to get your DNA tested and keep it private, there’s one easy way to keep yourself safe. Don’t do it.”

Police, Cahn said, often tout how investigative genetic genealogy is used on the most egregious cases, but there is nothing to stop them, and little way of knowing, if they use it in low-level cases.

The concern about how police will use investigative genetic genealogy is highlighted in a Los Angeles Times investigation into its used in the Golden State Killer investigation. The news organization found investigators did “covert searches” of companies’ DNA and “appeared to violate the privacy policy of at least one DNA company.”

Cahn also had concerns that DNA in cold cases may deteriorate over time, possibly leading to false positives.

Paul Holes, one of the investigators who helped catch the Golden State Killer, came to Wichita in 2020 to talk with officers about this technique. He said one of the problems would be concerns the public would have about privacy.

“It’s proven itself to be a revolutionary tool,” he said, adding over 70 cold cases had been solved that likely wouldn’t have been otherwise. “At no point ... as a law enforcement officer did I have access to anybody’s genetic information. All I got was information about how closely or distantly related these people were in the database. It gave me starting data points to start doing traditional genealogy to ultimately find Joseph DeAngelo.”

He added: “That’s in part what we’re here today to do, is to educate Kansas authorities and eventually educate the public and legislators about what investigate genealogy is and what it is not.”

Sedgwick County District Attorney Marc Bennett said Foy’s case would be the first case of its kind prosecuted in the county. He compared the technology with that of the Combined DNA Index System (CODIS), a national database that alerts officers if the DNA of an offender matches one from an unsolved crime.

He said the alert is only the start of the investigation.

“This CODIS process has been accepted and upheld through appellate review several times in Kansas,” Bennett said in an email. “I would expect the same legal analysis would frame the appellate court’s assessment of this latest advance.