Valadez's lawyers: DNA swab was illegal

The retiree's Fourth Amendment rights were violated by Wichita police's hasty actions, his lawyer says.

BY TIM POTTER AND RON SYLVESTER

The Wichita Eagle

Wichita police looking for the BTK serial killer illegally searched a man's home last month, one of the man's lawyers contends.

Police didn't have to rush into Roger Valadez's home with guns drawn to get a DNA swab from him, lawyer Dan Monnat said Tuesday.

"I don't think you can lawfully kick down a citizen's door to execute a warrant for a mouth swab for DNA the day you get the warrant," Monnat said. "There's no emergency. The DNA is not going to disappear."

Valadez should never have been considered a suspect in the serial killings, he and his lawyers say. Three days after his Dec. 1 arrest on misdemeanor housing code and trespassing charges -- which were dismissed or resolved Tuesday -- police said they had excluded him from the BTK investigation. Monnat has said that DNA testing cleared Valadez.

Told of the lawyers' comments, Police Chief Norman Williams said: "If a person feels their Fourth Amendment right has been violated, they have the court venue.

"This is a very complex, intense investigation," Williams said of renewed efforts to catch BTK, who has eluded capture since 1974.

Still, Williams said, "we do not allow ourselves to get caught up in an investigation to the point that we are not mindful of what is expected... which is to work within that Constitution."

Police arrested Valadez, 64, and took him to jail on misdemeanor warrants brought as a "pretext" to search his house, Monnat said. He said police did not show Valadez a search warrant that night.

Craig Shultz, another lawyer representing Valadez, said his client is exploring possible legal action against the city.

Monnat said police acted with unnecessary haste.

"There is no doubt that if they had waited," he said, Valadez would have answered his door and police could have executed the warrant for his DNA "without all the endangerment that occurred by kicking in his door at night."

Officers rushed into Valadez's home about 7 p.m. According to copies of search warrants, Monnat said, the warrant for Valadez's DNA was issued at 2:47 p.m. the day of his arrest. The warrant to search his house was issued at 10:34 p.m., about three hours after police took control of the home.

Kim Parker, chief deputy district attorney for Sedgwick County, said police do not have to show a citizen a search warrant before conducting a search but have to leave a copy on the premises.

Because the probable-cause affidavit has been put under court seal, Monnat said, he and Valadez haven't been able to learn why police searched Valadez's home and took his DNA. Police have said they were following up on a tip to their BTK hotline when they went to the home.

Monnat said he and Valadez would like to see the document "because neither of us believe there was a sufficient factual basis to justify the degree of home invasion and media frenzy that occurred."

On Monday, Valadez sued the parent companies of three media organizations, alleging they invaded his privacy and defamed him. In an interview Monday, Valadez said he wanted The Eagle to identify him so he could clear his name.

Parker said probable-cause affidavits remain closed because of public safety issues.

"Everything in the legal system is a balancing act," she said. "We balance the public greater interests in safety... against an individual's constitutional right."

Meanwhile, a municipal judge Tuesday granted Monnat's motion to dismiss the misdemeanor trespassing warrant against Valadez. Monnat contended that police executed the misdemeanor warrants in an unreasonable or untimely way.

To resolve a housing code charge, Monnat said, Valadez agreed to paint the eaves on a rental house and pay a $10 fine.