by April Scheinoha
The Minnesota Bureau of Criminal Apprehension wishes to test four swabs of touch DNA in a Pennington County District Court case. Now, it’s up to a judge.
The court cases stemmed from a Dec. 10 burglary at McDonald’s in Thief River Falls and a burglary reported Dec. 10 at a rural Thief River Falls home.
Brian Allen Torkelson and Justin Rick Hopper, both 25 and from Thief River Falls, have each been charged with two counts of felony first degree burglary and one count of felony theft of a firearm. Torkelson also faces two felony counts of ineligible person possessing a firearm. Hopper faces one count of the latter charge. Both men appeared in court Tuesday, April 26 at a joint hearing with their attorneys.
The defense attorneys have already filed briefs pertaining to the BCA’s request. Judge Tamara Yon set a May 10 deadline for Assistant Pennington County Attorney Kristin Hanson to file a response. The defense will have until May 17 to file a reply. Yon will then take the matter under advisement.
If Yon rules that the BCA can complete the tests the way it wishes to proceed, it will be some time before the results are available. Hanson said she has been told it would take four to five weeks.
Torkelson’s attorney, Assistant Public Defender Josh Melgaard, believed it would be 20 days. He noted Torkelson is impatient for the case to proceed. Melgaard said the gun has been in the custody of law enforcement since December. In late March, he received notice that the BCA intended to complete the tests. Torkelson has already waived his right to a jury trial. Instead, a judge will try Torkelson’s case if it proceeds to trial.
The BCA has notified all attorneys that it wishes to test touch DNA on the firearm. Hanson told Yon that a BCA scientist said the BCA needs to use two swabs from the grip of the gun and two swabs from the stock in order to complete the testing.
The point of contention is that the BCA said it needs to use all of the swabs to create a reliable profile. The tests will destroy the swabs.
Torkelson and Hopper are accused of entering through an unlocked McDonald’s drive-through and stealing a large safe, according to the complaint against Torkelson. Police Chief Dick Wittenberg earlier said that it was believed the safe contained about $4,000.
Surveillance video showed two masked people entering the business about three minutes after the last employee clocked out at 1:07 a.m. The burglary was discovered about four hours later. One burglar, wearing a white hooded sweatshirt, was armed with a shotgun featuring a sling. Both were wearing gloves.
Torkelson and Hopper allegedly loaded the safe into a stolen 1999 Chevy Suburban that had been parked at 112 Breezy Dr., a short distance from McDonald’s. Police later found the vehicle in the parking lot of Chief Red Robe Park in Thief River Falls. The police report indicated that the vehicle had sustained about $5,000 in damage.
The men are also accused of a burglary at 14224 177th St. N.E. in rural Thief River Falls. That burglary was reported the same morning as the McDonald’s burglary. The police report indicated that jewelry, cash, an iPad, a Mossberg 12-gauge shotgun and a Colt target pistol were stolen. The items are valued at more than $5,000.
Tuesday’s court hearing
Attorneys representing Torkelson and Hopper have filed motions objecting to the tests requested by the BCA. Melgaard, who represents Torkelson, noted that the scientific method and FBI protocols – the latter mentioned in the BCA’s letter – require the BCA to preserve some of the swabs in order to replicate the testing. He said the BCA claims all four swabs will increase the size of the DNA sample. However, Melgaard said that determination was the result of an in-house BCA study.
Melgaard said that touch DNA degrades on a firearm, which can become hot or cold. As a result, unlike a pool of blood on a carpet, it would be more difficult to determine whose DNA was in that particular location.
Melgaard argued that destroying the entire sample would be equivalent to destroying evidence. “It’s the same as if a gun would disappear from an evidence room,” he said.
Melgaard and Steven Huglen, who is representing Hopper as a public defender, also pointed to two court cases in which the testing of touch DNA has been an issue of contention. Other labs don’t destroy their entire samples or have blanket policies to that effect, Huglen said.
Yon asked the attorneys about the possibility of a second examiner watching the DNA testing. A second examiner wouldn’t fix the problem, Huglen said. A second examiner would only be able to observe whether the testing was being completed appropriately. He said the second examiner wouldn’t be able to ensure the suitability of the sample for reliable interpretation.
On the state’s behalf, Hanson said she felt the BCA’s letter was sufficient to explain why it needs to use all four swabs. She noted the letter refers to a more reliable test. Hanson agreed that another expert may watch the DNA testing.
Police were notified about the McDonald’s burglary at about 4:50 a.m. Dec. 10. While investigating the case, police spoke to Hopper’s girlfriend. She allegedly said that the men brought two guns – including a gun with a strap and a .22-caliber pistol – to her home. She said they told her that the guns and about $60 in coins had been stolen from the rural Thief River Falls home. The woman also reported seeing a checkbook with the alleged victim’s last name on the front.
The woman allegedly said Torkelson and Hopper talked about obtaining more money and something about someone walking out with a bag of money. They later left her home with Torkelson carrying a shotgun in his coat. About 45 minutes after McDonald’s was burglarized, the woman received a phone call from the men. Hopper, who admitted to stealing a safe, asked for a ride. She said her vehicle wouldn’t start. He replied that they would steal a truck, according to the complaint.
The woman later saw the two men with money contained in Northern State Bank bags. Police learned from McDonald’s employees that the safe contained such bags.
The woman said she and the men later used another woman’s car to drive to a storage trailer. A stolen suitcase was placed there. Later, law enforcement found clothing inside the suitcase. A white-hooded sweatshirt and another piece of clothing were inside. The clothing matched a description, provided by the woman, of what Torkelson had been wearing.
The woman said Shane Michael Drury later removed the guns from her home at her request. She didn’t want the guns there, and Torkelson hadn’t removed them as she had requested. Drury, 36, St. Hilaire, has charges pending in connection with the case for allegedly being a felon in possession of a firearm.