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Chief Justice Roberts has eye on DNA

U.S. Chief Justice John G. Roberts Jr. strongly indicated Monday that the Supreme Court wants to review a Maryland high court decision generally barring police from collecting DNA samples from people arrested for committing or attempting to commit a violent crime.

In a four-page opinion, Roberts said there is a “reasonable probability” that the Supreme Court will hear the case and a “fair prospect” that it will overturn the Maryland Court of Appeals’ decision that the DNA collections on arrest is constitutional only when absolutely necessary to identify the suspect.

Roberts issued his in-chambers opinion in declining Maryland Public Defender Paul B. DeWolfe’s request that he lift his July 18 stay of the Maryland court’s decision, an act that permitted the state’s police to resume collecting DNA samples despite the April 24 ruling in King v. Maryland.

Roberts, who issued the stay at Maryland Attorney General Douglas F. Gansler’s request, said the state’s interest in collecting DNA to investigate crimes trumps DeWolfe’s claim that investigators would suffer no “irreparable harm” if the collections did not occur.

Stephen B. Mercer, who heads the Office of the Public Defender’s forensics division, voiced confidence the justices will ultimately affirm the Court of Appeals’ decision.

“This is a preliminary round,” Mercer said of Roberts’ opinion. “We continue to believe the court, in the end, will vindicate the Fourth Amendment right of Mr. King and all Marylanders in their genetic privacy.”

On behalf of Alonzo Jay King Jr., DeWolfe had argued that Gansler’s eight-week delay in applying for a stay undermined the state’s allegation of irreparable harm. DeWolfe also pointed out that of the 10,666 samples Maryland seized last year, fewer than half were eligible for entry into the federal database and only 19 led to an arrest — of which fewer than half led to a conviction.

“These are sound points,” Roberts wrote. “Nonetheless, in the absence of a stay, Maryland would be disabled from employing a valuable law enforcement tool for several months—a tool used widely throughout the country and one that has been upheld by two Courts of Appeals and another state high court.”

Gansler declined, through a spokesman, to respond to questions on the case but issued a statement praising Roberts’ decision.

“This stay will allow Maryland the uninterrupted use of this critical law enforcement tool that helps police and prosecutors solve some of Maryland’s most serious violent crimes,” Gansler stated. “Now we will move forward and file our petition for certiorari with the Supreme Court next month.”

In his opinion, Roberts said his stay of the Maryland court’s decision was based on the “reasonable probability” that the Supreme Court will agree to review the ruling because it conflicts with decisions from the 3rd and 9th U.S. Circuit Courts of Appeal and from the Virginia Supreme Court upholding DNA collections. A prohibition on collections, as required under the Maryland court’s decision, would have “direct effects” beyond the state, he added.

“Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other states and the federal government,” Roberts wrote. “These factors make it reasonably probable that the court will grant certiorari to resolve the split and the question presented. In addition, given the considered analysis of courts on the other side of the split, there is fair prospect that this court will reverse the decision below.”

Roberts handled Gansler’s request for the stay because he is the Supreme Court justice assigned to handle appeals in the 4th U.S. judicial circuit, of which Maryland is part.

In the King case, the Court of Appeals said the 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 the DNA sample to investigate additional crimes, require a warrant, the court held.

The April decision overturned the rape conviction and life sentence imposed on King, whose DNA sample — taken after his arrest for an unrelated assault in 2009 — was linked 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. “[T]here are conceivable, albeit somewhat unlikely, scenarios where … 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.”

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.