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Court of Appeals limits DNA collection

Maryland’s top court on Tuesday dealt a near-knockout blow to a state law that permits police to collect DNA samples from anyone arrested for a violent crime or attempting to commit one.

In a 5-2 decision that reversed a cold-case rape conviction, the Court of Appeals said the 2008 Maryland DNA Collection Act passes constitutional muster only when collecting a genetic sample is the only way police can identify the suspect for that arrest. Other purposes, such as comparing the DNA sample to evidence from unsolved crimes, violate the protection against warrantless searches.

Gov. Martin O’Malley assailed the decision and said the state might appeal to the U.S. Supreme Court.

“The concept is simple: When we increase the library of DNA samples in our state, we solve more crimes,” O’Malley said in a statement. “The court essentially ignored the significant government interests in collecting DNA not only as an identification tool but also to help solve past crimes and exonerate innocent individuals.”

In its decision, the court said Wicomico County police violated Alonzo Jay King Jr.’s Fourth Amendment right when they swabbed the inside of his cheek for DNA in 2009, after his arrest for assault.

Once King’s DNA was entered into the database, he was also charged with a 2003 rape in Salisbury. His rape conviction and his sentence to life in prison without the possibility of parole were overturned Tuesday.

The police had identified King in the 2009 assault case through photographs and fingerprints and thus “had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first- or second-degree assault charges,” Judge Glenn T. Harrell Jr. wrote for the majority.

The court had upheld the state’s right to take DNA samples of convicted felons in a 2004 case, State v. Raines, but drew the line at the 2008 amendment to the law as applied to King. Unlike felons, a suspect still enjoys “the presumption of innocence,” the court noted.

“DNA collection can wait until a person has been convicted, thus avoiding all of the threats to privacy discussed in this opinion. DNA profiles do not change over time (as far as science “knows” at present), so there is no reasonable argument that unsolved past or future crimes will go unresolved necessarily,” Harrell added. “We simply will not allow warrantless, suspicionless searches of biological materials without a showing that accurate identification was not possible using ‘traditional’ methods.”

Maryland Public Defender Paul B. DeWolfe, whose office represented King, called the decision “obviously a very large victory for the client, for the office and for the Fourth Amendment.”

Assistant Public Defender Celia Anderson Davis, who argued King’s appeal, said the decision has the practical effect of striking down the law’s provision allowing DNA samples to be taken from arrestees.

“The opinion will apply to virtually every case in which an arrestee’s DNA sample is taken,” Davis said. “I am not aware of any cases in which a person’s identity was genuinely in doubt.”

The court did let the law stand as written, saying “we cannot exclude the possibility that there may be, in some circumstances, a need for the state to obtain a DNA sample to identify an arrestee accurately.”

Even so, Brian S. Kleinbord, of the Office of the Maryland Attorney General, said he is “very concerned” by the court’s opinion.

“It is not clear how any law enforcement agency can use this portion of the statute after the court’s ruling,” added Kleinbord, who heads the office’s criminal appeals division.

Judge Mary Ellen Barbera dissented from the court’s decision, saying arrestees have a “significantly diminished expectation of privacy” with regard to police taking a DNA sample from them.

Barbera cited the Supreme Court’s 1966 Schmerber v. California decision that a police officer’s drawing of a blood sample from an arrestee did not violate the Constitution’s Fourth Amendment prohibition on unreasonable searches.

State Sen. Brian E. Frosh, who chairs the Senate Judicial Proceedings Committee, voiced surprise at Tuesday’s ruling for the same reason.

“It looked to the legislators as if [a DNA swab] was much less invasive than a blood test,” Frosh said, referring to the 2008 General Assembly.

“We assumed it would be constitutional,” the Montgomery County Democrat added. “We were wrong. We make mistakes.”

New trial ordered

The officers at the Wicomico County Central Booking facility swabbed the inside of King’s cheek to get a DNA sample soon after his April 10, 2009, arrest on first- and second-degree assault charges. The sample was sent to the Maryland State Police Forensic Sciences Division for analysis.

Three months later, the state police notified Salisbury police detective Barry Tucker of a “hit” on King’s DNA profile in an unsolved September 2003 rape of a 53-year-old Salisbury woman.

A grand jury indicted King for first-degree rape, related offenses and armed robbery in October 2009. King moved to have the DNA evidence suppressed as an unreasonable search.

After the motion was denied, King pleaded not guilty on an agreed statement of facts and was convicted. He appealed to the Court of Special Appeals. But the Court of Appeals, on its own motion, chose to hear King’s case before the Court of Special Appeals could render a decision.

The Court of Appeals sent the case back to the Wicomico County Circuit Court for a new trial. Davis, the assistant public defender, said she expects the rape charge to be dismissed.

“This was the only evidence used to convict Mr. King,” Davis said of the DNA match. “I don’t think a new trial is possible.”

Wicomico County State’s Attorney Matthew A. Maciarello did not return a telephone message seeking comment.

As for the assault charges, King was found guilty of a misdemeanor count of second-degree assault and sentenced to four years in prison with all but one year suspended.



King v. Maryland, CA No. 68, Sept. Term 2011. Reported. Opinion by Harrell, J. Dissent by Barbera, J. Argued Jan. 9, 2012. Filed April 24, 2012.


Did the judge in defendant’s rape case err by denying his motion to suppress DNA evidence obtained after his arrest in an assault case, even though the police knew his identity through fingerprints and photographs?


Yes; while the law may not be unconstitutional on its face, the collection of DNA prior to conviction in this case violated the defendant’s constitutional right against unreasonable searches.


Celia Anderson Davis for petitioner; Robert Taylor Jr. for respondent.

RecordFax # 12-0424-22.