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DNA is often collected by use of a buccal swab on the cheeks or mouth. Police who receive a person’s DNA sample voluntarily during a criminal investigation may use that sample to investigate other crimes unless the person has expressly told them not to, a sharply divided Court of Appeals has held. (U.S. Navy photo)

Supreme Court declines to review Maryland DNA case

The U.S. Supreme Court let stand without comment Tuesday a Maryland high-court ruling that police acted constitutionally when they used the DNA sample a homeless man gave them for a rape investigation to link him to an unrelated burglary.

Maryland public defender Paul B. DeWolfe (File)

Maryland public defender Paul B. DeWolfe (File)

In papers filed with the Supreme Court, Maryland Public Defender Paul B. DeWolfe had argued, on behalf of George Varriale, that the Constitution’s Fourth Amendment ban on unreasonable searches prohibits police who receive a person’s DNA sample voluntarily during a criminal investigation from using that sample to investigate other crimes.

DeWolfe had said the Maryland Court of Appeals’ decision is at odds with rulings by the 4th U.S. Circuit Court of Appeals, which oversees the state’s federal district courts and has been more respectful of individuals’ 4th Amendment rights by being less willing to allow police to store DNA for other investigations.

“At bottom, it is unreasonable for the police to employ a stratagem of obtaining consent from an innocent person to a bodily intrusion for a limited purpose, and subsequently make use of the information it obtained from inside the person’s body for an unrelated and undisclosed purpose without any additional justification,” DeWolfe wrote in his unsuccessful petition for Supreme Court review. “This case presents an excellent vehicle for the court to resolve the conflict.”

DeWolfe’s petition was co-signed by Stephen B. Mercer, who heads the public defender’s forensics division.

Maryland Attorney General Brian E. Frosh waived his right to file a response to DeWolfe’s petition for Supreme Court review.

The case was docketed at the Supreme Court as George Varriale v. Maryland, No. 15-618.

No ‘express limitation’

The Maryland Court of Appeals, in its divided August decision, upheld the burglary conviction of Varriale, who had given his DNA sample to Anne Arundel County police investigating a rape. Varriale was cleared of the 2012 sexual assault in Glen Burnie but linked to the 2008 burglary via a DNA match.

“In providing his consent, Varriale placed no express limitation on the subsequent use or storage of his genetic material and, therefore… he waived any potential privacy interest he may have had in that genetic material,” Judge Clayton Greene Jr. wrote for the majority. “Varriale has no privacy interest in his identifying information contained in the DNA profile created from lawfully obtained DNA samples which would entitle him to the protections of the Fourth Amendment.”

The Court of Appeals rejected arguments from Varriale’s counsel that he did in fact limit the permissible police use of his DNA sample in signing the consent form, which expressly stated the DNA would be used in “this investigation” and “in any future criminal prosecution.”

The court said the form’s language places no “express limitation” on the use of the DNA in subsequent investigations, much as police use fingerprint data when investigating other crimes.

Greene was joined in the majority opinion by Chief Judge Mary Ellen Barbera and Judges Lynne A. Battaglia and Robert N. McDonald. Judge Shirley M. Watts joined only in the court’s judgment.

The court’s decision drew a blistering dissent from Judge Glenn T. Harrell Jr.

“After today’s ruling, those who consent to the taking of their biological materials, in an effort to help the police, will face a certain knowledge that even if not suspected or convicted of a crime, the police can, and will, hold on to their DNA profile forever, and may compare it at any time for any or no articulable reason,” Harrell wrote.

Harrell, joined on the dissent by Judge Sally D. Adkins, said the consent form Varriale signed was constitutionally sufficient to have limited to the rape investigation the scope of law enforcement’s use of his DNA.

“The majority’s assessment of the scope of Varriale’s consent, in my view, is so far removed from the reality of what a typical reasonable person would have believed, based on the totality of the circumstances of this case, as to boggle the mind of virtually any person-on-the-street in our state,” wrote Harrell, a retired judge who participated in the court’s decision by special assignment.

Judges should not expect people to know that they must “re-negotiate the terms of the pre-printed consent form to specify that [their] biological samples may not be used to investigate any imaginable crime other than the one being investigation,” Harrell wrote.

“This is beyond the ken of a typical lay person, even one who is not a homeless person living in the woods,” he added. “Unless and until the public defender or private criminal defense attorneys open offices in the woods (or raccoons are accepted for matriculation in law schools), the majority’s standard, as applied in this case, represents an unreasonable expectation of what a typical reasonable person in Varriale’s shoes would know to do.”