Md. high court bans DNA swabs of charged suspects; police, prosecutors seek appeal

Maryland’s top law enforcement officials are pushing back against a recent Court of Appeals decision that prohibits DNA collection from suspects charged — but not yet convicted — of violent crimes, saying the ruling will allow dangerous criminals to go undetected by authorities.

Maryland Gov. Martin O’Malley (D) and police chiefs and prosecutors from the D.C. suburbs to Baltimore County are urging the state’s attorney general to challenge last week’s Alonzo Jay King Jr. v. State of Maryland decision, which found that swabbing criminal suspects for DNA samples after they are charged is a violation of the suspects’ constitutional rights.

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The ruling, police and prosecutors say, could jeopardize the convictions of 34 robbers, burglars and rapists whose genetic samples were taken after they were charged in separate cases. They also said it will hamper detectives’ ability to solve cold cases.

“It really sets Maryland back in the crime fight,” said Col. Marcus L. Brown, superintendent of the Maryland State Police.

The case puts Maryland at the center of a brewing national debate that raises the age-old question of how to balance privacy rights and public safety. Federal and state courts across the country have issued mixed opinions on when DNA collection is legal. The governor’s office says 26 states have legislation similar to Maryland’s.

The issue seems destined, legal experts say, to be resolved by the U.S. Supreme Court.

“It’s like another precinct reporting,” said David H. Kaye, a Penn State University law professor who has tracked similar cases nationwide. “We don’t know what the final outcome of this is going to be, but now there’s another election return in.”

State authorities and officials in Prince George’s, Montgomery and Baltimore counties said they plan to stop collecting DNA from charged suspects while they await further court action. They said they are urging Attorney General Douglas F. Gansler to apply for a writ of certiorari with the U.S. Supreme Court, hoping it will hear and overturn the state court’s ruling.

David Paulson, a Gansler spokesman, said attorneys in his office were still studying the opinion and surveying the national legal landscape. He said the attorneys “strongly agree” with a dissenting opinion in the Maryland case and are “strongly considering an appeal.”

In Virginia, law enforcement officials take DNA samples after arrest in violent felonies and burglaries, and in the District, officials take samples after conviction, authorities said.

Maryland’s DNA bill was a leading priority for O’Malley during the 2008 legislative session, helping him to bolster the tough-on-crime credentials he earned during his days as Baltimore’s mayor.

The bill that emerged was the product of a compromise between O’Malley and members of the Legislative Black Caucus, who argued that the governor’s original proposal was overreaching. One African American senator said the bill attempted “to use technology to ensnare people.”

O’Malley has since highlighted the number of “hits” generated by the expanded database. He is among those urging Gansler to appeal the court ruling, saying in a statement that the concept is “simple”: “We take more criminals off the streets more quickly and put them in jail for a longer period of time so that they cannot murder, rape or harm other citizens among us.”

At the heart of the debate in Maryland is that legislation, which, starting in 2009, allowed police to collect DNA from suspects after they were charged with violent crimes or burglaries. Before then, police had been able to collect DNA only from convicted criminals.

A man named Alonzo Jay King Jr. challenged the law after he was arrested in Wicomico County in April 2009 on first- and second-degree assault charges. Prosecutors used a DNA swab stemming from that case to connect him to a 2003 rape. He was eventually convicted and sentenced to life in prison for the rape.

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

 
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