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Jamie Raskin
Sen. Jamin B. ‘Jamie’ Raskin, who chairs the Senate Executive Nominations Committee, says the influence of money threatens to corrupt judicial elections. (File photo)

Valid evidence gathering, or violation of rights?

Top court again wades in to ‘brave new world’ of DNA collection

Maryland’s top court will again examine the scope of law enforcement’s authority to collect and test a criminal suspect’s DNA without a warrant.

The Court of Appeals has agreed to hear whether Anne Arundel County police violated a homeless man’s constitutional rights by using his DNA sample to connect him to a burglary, though he had only consented to the collection to clear him of an alleged rape.

George Varriale’s appeal marks the third time in recent years the Court of Appeals will balance an individual’s constitutional right against an unreasonable search and law enforcement’s need to gather evidence to solve crimes.

In 2012, the Court of Appeals struck down as unconstitutional a Maryland law that permits police to swab the inside cheek of any person arrested on charges of committing a violent crime.

In a 5-2 decision, the court overturned Alonzo Jay King Jr.’s rape conviction, saying the swabbing was an unreasonable search. But the U.S. Supreme Court reversed and reinstated the law on June 3, 2013, saying a DNA test was no different than taking an arrestee’s fingerprint.

Last August, the Court of Appeals ruled people who voluntarily submit to questioning in a police station relinquish any claim to the perspiration they leave behind on a chair — even when detectives examine the bodily fluid for DNA linking them to a crime. The court, in its 4-3 decision, said Glenn Raynor had no reasonable expectation of privacy regarding his sweat and upheld his rape conviction.

Raynor’s attorney, Byron L. Warnken, said he plans to appeal that decision to the Supreme Court this month.

“We’re in a brave new world” with DNA collection and testing, said state Sen. Jamin B. “Jamie” Raskin, a constitutional law professor at American University’s Washington College of Law.

“If the government is in lawful possession of your DNA, does it have it for all time and for all purposes?” added Raskin, D-Montgomery. “The Supreme Court is generally friendly to open-ended investigatory power of the police when they are in lawful possession of DNA evidence.”

Montgomery County State’s Attorney John McCarthy said the use of DNA evidence involves “this balancing of the individual right to privacy and the public’s interest in safety.” The Supreme Court has correctly held this balance generally tilts toward public safety, he added.

DNA testing, however, is used not only to locate the guilty but to eliminate the innocent during police investigations, McCarthy said.

DNA evidence “substantially reduces the use of police resources on leads that ultimately prove to be false,” he said. “It serves public safety. You are ensuring that public resources are being intelligently used.”

Anne Arundel County detective David Wood encountered Varriale on July 10, 2012, in a tent off Crain Highway and asked him to sign a form consenting to a DNA test. Wood explained he was investigating an alleged rape, according to court papers.

Varriale signed the form and a DNA swab was collected.

A test of the DNA excluded Varriale as a suspect in the alleged rape. However, the DNA analyst, Ashley Hayes, subsequently uploaded Varriale’s sample to county and state DNA databanks, without informing Varriale, court papers stated.

The test yielded a match between Varriale’s DNA and the DNA sample police discovered on a Coke can at the scene of a 2008 burglary in Glen Burnie.

Varriale sought to suppress the DNA evidence he submitted, saying its use in linking him to the burglary violated his constitutional Fourth Amendment right against unreasonable searches because he had not consented to a search of his DNA beyond the rape investigation.

An Anne Arundel County Circuit Court judge rejected his motion. Varriale then pleaded guilty to second-degree burglary, but retained his right to challenge the search’s constitutionality.

He appealed after receiving a suspended four-year prison sentence and two years’ probation.

The Court of Special Appeals upheld the search in a reported opinion July 30, saying Varriale’s initial consent to the DNA test gave police broad authority.

“[T]he state had no obligation to obtain a warrant before reexamining the DNA sample that it had lawfully obtained,” Judge Kevin F. Arthur wrote for the intermediate court.

Varriale “unquestionably consented to the taking of a DNA sample at least for the purpose of the rape investigation itself,” Arthur added. “Furthermore, once the state had validly obtained the sample, as it did when Varriale consented to the taking of the sample in connection to the rape investigation, it had no obligation to obtain a warrant before using the sample in a subsequent investigation.”

Judges Robert A. Zarnoch and Michele D. Hotten joined Arthur’s opinion.

Varriale sought review by the Court of Appeals, which agreed on Dec. 19 to hear the case. The court has not set a date for oral arguments in Varriale v. Maryland, No. 85, Sept. Term 2014.