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Chief justice lets state resume DNA collections on arrest

Maryland police can temporarily resume collecting DNA samples from people arrested for violent crimes, U.S. Chief Justice John G. Roberts Jr. ruled on Wednesday.

U.S. Chief Justice John Roberts

Roberts issued the stay at the request of Maryland Attorney General Douglas F. Gansler, who said he plans to petition the Supreme Court to overturn the Maryland Court of Appeals’ April 24 holding, in King v. Maryland, that collection of DNA purposes on arrest is almost always unconstitutional.

The stay provides a strong indication that the justices will agree to decide the case, said law professor Abe Dash.

Roberts handled Gansler’s request for the stay because he is the Supreme Court member assigned to handle appeals in the 4th U.S. Judicial Circuit, which includes Maryland.

In his one-sentence order, the chief justice said the stay would remain in effect at least until attorneys for Alonzo Jay King Jr. — who had successfully challenged the DNA collection in state court — submit a response explaining why the stay should be lifted. The chief justice set 4 p.m. next Wednesday as the deadline for that reply from King’s attorneys from the Maryland Office of the Public Defender.

The office is “preparing a response for Chief Justice Roberts [that] will be filed forthwith,” said Stephen B. Mercer, who heads the public defender’s forensics division. Mercer declined to specify when that response will be submitted.

Gansler, through a spokesman, declined to answer questions but issued a statement in which he said he is “encouraged” by the chief justice’s order.

“The court’s stay may indeed result in identifying perpetrators in some of Maryland’s most horrific unsolved cases where DNA was left at the scene of the crime,” Gansler stated.

Wednesday’s order does not necessarily indicate that the justices will overturn the Maryland court decision, said Dash, a professor at the University of Maryland Francis King Carey School of Law. Rather, Roberts is simply saying “let’s not change anything [with regard to Maryland’s DNA law] until this is resolved,” Dash said.

Gansler asked the high court to issue the stay after the Maryland Court of Appeals denied a similar request on May 20.

Foreshadowing his Supreme Court petition, Gansler told the Court of Appeals that the justices have upheld the taking of blood samples from arrestees, which is more invasive than swabbing inside their mouths for DNA.

In Baltimore, DNA samples have not been collected from arrestees brought to Central Booking and Intake Facility since about April 27 based on advice from legal counsel, said Maryland Department of Public Safety and Correctional Services spokesman Mark A. Vernarelli. The department is seeking further guidance from the Office of the Maryland Attorney General in light of Roberts’ order, he added.

In the King case, the Court of Appeals said the 2008 Maryland DNA Collection Act passes constitutional muster only when collecting a genetic sample is the sole way police can identify the arrestee.

Other purposes, such as using to DNA sample to investigate additional crimes, require a warrant lest the police violate the arrestee’s constitutional Fourth Amendment right against unreasonable searches, the court held.

In its decision, the state court overturned a rape conviction and life sentence of King, whose DNA sample — taken after his arrest for an unrelated assault in 2009 — linked him to the 2003 sexual attack.

The police had confirmed King’s identity in the 2009 assault 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 5-2 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.

Other courts that have considered the issue have reached different conclusions — as did Judge Mary Ellen Barbera, who dissented from the King 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 retired Judge Alan M. Wilner, who sat by special assignment.

As for the assault charge, 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.