Tactics To Get DNA Disputed

"They claim he consented," Finci said. "I can only tell you from my gut reaction that consent has to be knowing and voluntary to be valid. . . . And how can you have knowing and voluntary consent when the officer tells you they are investigating an armed robbery?"

County Public Safety Director Vernon Herron said that the law permits DNA samples to be taken on the street and that some police officers carry swab kits in their patrol cars. The fact that Edelen opened his mouth constituted consent, Herron said.

Laws in many states, including Maryland, allow police to take DNA samples from juvenile suspects with nothing more than verbal consent, a practice some defense attorneys say violates young suspects' rights.

Although parental consent is required before children can receive medical treatment and in some cases before they can be questioned in school, police are allowed to interview, search, photograph, fingerprint and take DNA samples with nothing more than a nod, authorities said.

Unlike the Miranda warning, which advises crime suspects that whatever they say may be used against them, no such warning is required before DNA is taken.

"Maryland has no protocol for telling you anything when asking for DNA," said Matt Campbell, a former Montgomery County prosecutor. Campbell said the courts have been loath to place restrictions that could complicate police investigations. "The line has been moved to allow a wide range of police conduct," he said.

Campbell said police might have taken the sample to establish "a greater degree of certainty" before charging the boy with such a serious offense. Edelen could face life in prison if convicted.

Some officers admit their discomfort with taking DNA from young suspects.

"As a father, it concerns me that someone could approach my son and ask him for a sample of his DNA and then take it without me knowing," said a longtime Prince George's police official who spoke on condition of anonymity because the department is not allowing officers to discuss the case.

"But as a law enforcement officer, I know that our hands would be tied if every time we needed to get a DNA sample from a suspect we had to contact a parent and wait for them to arrive. It would take forever and, meanwhile, some of these very bad little criminals would still be running around on the street."

In Edelen's case, the Prince George's police laboratory compared the DNA sample to semen found on the clothing of the 13-year-old girl and found a match, according to charging documents.

Also at issue is whether police were truthful about why they needed the sample. By law, officers are allowed to use deception when interviewing suspects. But there is disagreement among legal experts as to whether they can lie to obtain physical evidence.

"They are required, under consent law, to say what they want the DNA for," said Laura Martin, an attorney with the Maryland Crime Victims' Resource Center in Upper Marlboro. "If police want to get consent to search a car, you have to say what you are looking for because it affects the search. If you are looking for grenade launchers, you can't look in the glove box."

Some experts said taking a DNA sample of the boy under false pretenses and without telling his father could result in the evidence being thrown out by a judge.

"There is no excuse for the officer not being honest with the child's parent," Benjamin said. "When officers choose to cheat and lie, the public suffers because then what could have been a perfectly strong case crumbles."