But in a 5 to 2 ruling, the Maryland Court of Appeals sent King’s case back to the Wicomico County Circuit Court and threw out the DNA evidence against him, saying investigators violated his Fourth Amendment rights in taking his genetic material and comparing it with old crime scene samples.
“Although we have recognized (and no one can reasonably deny) that solving cold cases is a legitimate government interest, a warrantless, suspicionless search can not be upheld by a ‘generalized interest’ in solving crimes,” the court wrote.
King’s public defender declined to comment, and the state’s attorney involved in the case did not return a phone message seeking comment.
Prince George’s Police Chief Mark Magaw said the decision takes away a “tremendous tool” that police use to remove criminals from the streets and to exonerate the innocent.
Montgomery County Assistant Police Chief Russ Hamill said he worried that collecting DNA only from convicts would allow more criminals to “fall through the cracks.”
“Violent predators are going to be loose in our community due to this decision, and without this decision, they wouldn’t have been loose in our community,” Hamill said.
David Rocah, a staff attorney at the ACLU of Maryland, said that while DNA collection before conviction might be a useful law enforcement tool, its effectiveness in fighting crime does not make it constitutional.
“There’s lots of things that police might want to do that will help them catch criminals, but that’s not what we do to judge the propriety of police actions,” Rocah said.
Since 2009, the DNA database of charged — but not convicted — offenders has produced 190 hits, resulting in 65 arrests and 34 convictions for burglaries, rapes and robberies, according to data provided by the governor’s office. Twenty cases are still considered active investigations, and 12 cases are making their way through the court system, according to the data.
Montgomery County State’s Attorney John McCarthy said the DNA swab is “less intrusive” than a fingerprint and a reasonable search, considering its effectiveness.
“You have numbers that say it works, and it works for very serious crimes,” McCarthy said.
McCarthy and other prosecutors said they would review their pending cases in light of the court’s ruling, and they expected some defendants might move that their convictions be overturned.
In recent days, police and prosecutors across the region have highlighted several cases that demonstrate the benefits of cold case DNA hits. Perhaps none, though, is more relevant than King’s.
In September 2003, according to court records, King broke into the home of a 53-year-old Salisbury woman, held a gun to her head and raped her. He was not a suspect until 2009, when DNA taken after the unrelated assault charge was matched to DNA from the rape, court records show.
That match would not have been possible before the 2009 legislation, authorities said. King was eventually convicted of misdemeanor second-degree assault in the 2009 case — a charge not serious enough to warrant his inclusion in the DNA database for convicted offenders, authorities said.
“We would never have had his DNA,” said Baltimore County State’s Attorney Scott Schellenberger, “but for the arrestee database.”
Staff writer John Wagner contributed to this report