Theresa Bentaas

Baby found dead in ditch with tears frozen to his tiny cheeks. Alleged baby killer says her DNA was illegally lifted.

A South Dakota woman accused of leaving her newborn in the trash to die nearly 40 years ago says authorities illegally obtained her DNA.

As CrimeOnline previously reported, authorities used genealogy sites and DNA testing and determined the mother’s infant was Theresa Rose Bentaas. The infant, nicknamed Baby Andrew, was found deceased in a ditch in 1981.

When questioned, Bentaas reportedly told detectives that at the time, she hid the pregnancy from her family and friends and later gave birth in her apartment. She then drove the infant to Sioux Falls, where she dumped him in a cornfield.

The 57-year-old said she was “young and stupid” at the time, according to the arrest affidavit. She was 19 when she gave birth.

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The Argus Leader reports that a man named Lee Litz first made the gruesome after spotting a red basket while test-driving a Jeep with his friend near 33rd Street and Sycamore Avenue in Sioux Falls. In 2016, he told the outlet he had a strange feeling about the blanket and followed his instincts.

The memory of finding baby Andrew still haunted him over 30 years later.

“I sure would have adopted him rather than see him die like that,” Litz said.

Litz said he could see the infant’s tears frozen to his tiny cheeks.

Baby Andrew was alive when Bentaas left him in the ditch, according to officials. The baby then “slowly succumbed to exposure” and passed away. Bentaas reportedly admitted she saw news coverage about her baby, but told authorities she “was in denial that she was the one responsible for that.”

Bentaas now claims that investigators dug through her trash without permission and took DNA samples from beer cans, cigarette butts and water bottles. She pleaded not guilty to murder and is fighting the charges against her, claiming that authorities violated her constitutional rights.

“People do not have a privacy interest in the things they throw in the trash, but they definitely have privacy interest in their DNA that is on those items,” Bentaas’ lawyer, Clint Sargent, said, according to NBC News. “And there’s nothing a free person can do to not deposit DNA on the stuff they deal with every day.”

Nathan Freed Wessler, an attorney with the American Civil Liberties Union, added that without protection in place, “every one of us is vulnerable to having our DNA secretly tested and scrutinized by police without judicial oversight.”

Deputy Minnehaha County State’s Attorney Randy Sample disagrees.

“There’s nothing unreasonable about what law enforcement does,” Sample said. “They were tasked with trying to identify a deceased baby. There is no claim (of privacy). She lost that when she left the baby in the ditch.”

A judge in the case will ultimately decide if the DNA samples pulled from Bentaas’ trash will be admissible in the case.

Bentaas posted bail in 2019 and has been out of jail since, awaiting trial. She’s required to wear a GPS monitoring device.

Check back for updates.

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[Feature Photo: Theresa Bentaas/Police Handout]