Taking a giant step toward an appeal to the U.S. Supreme Court, Maryland’s attorney general on Tuesday urged the state’s top court to reconsider or stay its week-old decision that struck down the key feature of the 2008 Maryland DNA Collection Act.
The Court of Appeals found it unconstitutional for police officers to collect DNA samples without a warrant from those arrested on suspicion of violent crimes. If the court declines to reconsider that decision, Attorney General Douglas F. Gansler said he will seek review by the Supreme Court.
“We live in a time when we have this amazing law-enforcement tool that we can use without violating anybody’s privacy rights or any other rights,” Gansler said after filing his motion for reconsideration or a stay. Taking a DNA sample “is clearly not a Fourth Amendment violation at all.”
The Court of Appeals is scheduled to consider the motion on May 17, said Bessie M. Decker, the court’s chief clerk.
Gansler predicted the Maryland court will decline to reconsider its decision in King v. Maryland, which overturned the rape conviction and life sentence of Alonzo Jay King Jr.
“The only invasion of privacy was when the defendant broke into the home of a 53-year-old woman and raped her at gunpoint,” Gansler said.
In court papers, Gansler estimated that DNA collection from arrestees “could help resolve 190 unsolved cases” in Maryland and that it is “far less intrusive” than other procedures already upheld by the Supreme Court, like drawing blood or fingerprinting.
But Stephen B. Mercer, of the Maryland Office of the Public Defender, said DNA is different.
The constitutional violation in DNA collection is not the physical invasion of the suspect but the “information intrusion” on the rights of individuals, said Mercer, who heads the office’s forensics division.
“This [case] is really about trying to expand a DNA database without any limiting principle,” he said. “The Fourth Amendment has to catch up with technology.”
Mercer disputed as “false” and “misleading” Gansler’s reference to 190 cases, saying that 23,086 DNA samples taken from arrestees in 2009 and 2010 resulted in the filing of 23 formal charges and only 4 convictions.
He also said the Supreme Court should allow the issue of DNA collection to “percolate” in lower federal and state courts.
The propriety of DNA testing “will have to be guided by our principles,” including the right against unreasonable searches, Mercer said. “It may be that the best course is to allow this issue to continue to be developed in other states before the Supreme Court finally resolves it.”
Swabbing for DNA on arrest has been held unconstitutional in Minnesota, while two federal courts of appeal — the 9th and the 3rd Circuits — have recently supported the practice.
The public defender’s office has represented King throughout the legal process and will defend him before the Supreme Court, if necessary, Mercer added.
The Maryland Court of Appeals earlier found swabbing for DNA constitutional after conviction, but balked at moving the procedure up to the point of arrest.
It ruled that Wicomico County police violated King’s Fourth Amendment right when they swabbed the inside of his cheek for DNA after his arrest for assault in 2009.
After the DNA was entered into a database, King was charged with the 2003 rape.
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.
“We simply will not allow warrantless, suspicionless searches of biological materials without a showing that accurate identification was not possible using ‘traditional’ methods,” Harrell added.
“[T]here are conceivable, albeit somewhat unlikely, scenarios where an arrestee may have altered his or her fingerprints or facial features (making difficult or doubtful identification through comparison to earlier fingerprints or photographs on record) and the state may secure the use of DNA samples, without a warrant under the Act, as a means to identify an arrestee, but not for investigatory purposes, in any event.”
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 was joined in dissent by Judge Alan M. Wilner, a retired jurist sitting by special assignment.
In addition to the rape, 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.
Click here to view the motion to stay.