By Ian Duncan, The Baltimore Sun
6:00 PM AKST, February 28, 2013
Even as the U.S Supreme Court reviews Maryland's law on police collection of DNA samples, many law enforcement agencies in the state are collecting and holding genetic material from murder victims and people never convicted of crimes.
The practices have raised concerns among some legislators and the public defender's office, who fought for privacy protections and other restrictions in a 2009 state law that allows DNA collection from people arrested on suspicion of serious crimes.
Now, those critics say, police are taking advantage of loopholes and using the genetic material in ways not contemplated by state law. The objections have emerged at a crucial moment for the law, which is up for renewal in Annapolis this year and was argued this week before the nation's highest court.
Law enforcement officials say that everything in the state database of more than 110,000 DNA samples is there legally, and argue that not all samples are covered by the same law that governs collection upon arrest. For example, some are taken based on warrants issued by judges.
But Stephen Mercer, the forensics chief at the public defender's office, said that the theory police are using to keep the samples — that they were originally lawfully obtained — opens up the potential for a wide range of abuses.
"Where do you draw the line? Where do you stop?" he said, describing scenarios in which police pick up and analyze genetic material from cigarette butts and drinking cups. "If you buy into this rationale that 'we're in lawful possession of it,' you can go anywhere."
The case now before the Supreme Court will decide the constitutionality of Maryland's widely used program to take DNA from people arrested — but not yet convicted — on suspicion of violent crimes and burglaries. The case is likely to affect similar programs that have sprouted up in recent years in 27 other states.
But police have been collecting DNA in various forms since it first became available as a law-enforcement tool.
Before 2009, the only way for investigators to get genetic information from the subject of an investigation was to either secure a warrant or get the suspect to submit it voluntarily. When Gov. Martin O'Malley proposed a year earlier to allow collection upon arrest, it touched off a political battle in the General Assembly over privacy and racial profiling.
To allay concerns, proponents of the law agreed to protections — including a provision that requires that suspects' DNA be thrown out if they are acquitted or their cases are dropped.
Police say the restrictions do not extend to collections taken using warrants, and with the law back before lawmakers, members of the Legislative Black Caucus and others are pushing for more privacy safeguards in those and other cases.
Police in Baltimore City have kept DNA from homicide victims, for example, according to a technical manual the agency provided to the public defender's office under a public records request. And police in Montgomery, Prince George's and Anne Arundel counties all confirmed that they do the same.
William Alexander, a spokesman for the Prince George's County Police Department, said samples from homicide victims are used as part of the murder investigation. And Ray Wickenheiser, the director of the Montgomery County Police Crime Lab, said they can be used to solve missing persons cases.
"To me, that's a responsible use of that index," he said.
O'Malley is urging lawmakers to renew the 2009 law without adding any additional restrictions. Raquel Guillory, a spokeswoman, said the different types of collection are separate issues.
"They are two distinct different policies and procedures, one that is lawful and has been in existence and didn't have to do with the folks that are charged," she said. "The suspect database existed way before any of us were here, and it was only after a judge signed a warrant."
Del. Jill P. Carter, a Baltimore Democrat and member of the Black Caucus, said she will push for changes and said lawmakers may not have known all of the ways police could use DNA when they passed the bill.
She pointed to the case of Earl Whittley Davis, who was linked to a Prince George's County murder after police there analyzed bloody clothing taken when he was the victim of an earlier shooting in Howard County.
"It's an example of something that we didn't anticipate," she said.
The Davis case reached the U.S. 4th Circuit Court of Appeals, and last year the judges ruled that his DNA had been unconstitutionally stored in Prince George's County's local database. But the conviction was allowed to stand because the judges decided that police had made a series of honest mistakes.
Greg Shipley, a Maryland State Police spokesman, said departments in the state have collected information from 6,602 suspects outside of the arrestee database. He said there is no easy way to tell how many of those records are of people who were not ultimately convicted.
Shipley said that while there is no requirement that such records be automatically removed from state databases, people can apply to have their information expunged.
"We, I think, are working well within existing law and case law," Shipley said. "Whether or not … various aspects should be clarified, that's an issue for the legislature to consider."
Shipley pointed to the case of a Wicomico County man who he said was convicted of rape after police collected his DNA in another, ultimately unsuccessful criminal investigation. That case played out well before the 2009 law took effect, he said.
The state police do not use information from murder victims in the statewide database of genetic information, but Mercer believes the law is unclear about whether there's anything to stop the agency from doing so.
The DNA system in the United States works on a three-tiered system, linking up local and state databases with a federal one.
Baltimore police had DNA for 2,005 suspects and 3,106 victims on file as of last March, according to documents provided by the public defender's office. Agency officials did not respond to requests for comment on this story.
In contrast, Baltimore County Police spokeswoman Elise Armacost said her department had just 15 suspect samples and no crime victim profiles.
Searches of the local databases are not mentioned in the 2009 state law, and Mercer warned in a letter to lawmakers that police could use them in ways that undermine privacy protections and leave open the door to racial discrimination.
"DNA is a powerful investigative tool to identify and apprehend criminal offenders, but its potential for abuse is real," he wrote. "Extension of statutory regulation to local police DNA collection … will clearly advance these ends."
The state DNA law was itself stuck down by the Maryland Court of Appeals, which ruled that it stepped on constitutional protections. Maryland officials appealed the case to the Supreme Court, where this week Justice Samuel A. Alito Jr. called it "perhaps the most important criminal procedure case" in years.
It could be months before the court issues a decision.
Carter said she was hoping to delay the renewal of the law until the high court decides, but said delegates have been facing an "extremely aggressive" push from O'Malley.
The challenge that made it to the Supreme Court came from Alonzo Jay King, also of Wicomico County, who was convicted of a 2003 rape after his DNA was collected in a 2009 assault arrest. But his case is just the latest in a series of legal battles that have shaped the way police use genetic information in Maryland.
In using DNA collected through warrants, police have relied on a Maryland Court of Special Appeals decision on a 1990s Montgomery County rape case.
Police had charged Raymond Davis Wilson with the masked rape of a 76-year-old woman, then matched DNA taken from his victim with a blood sample taken from him in an separate 1991 investigation in which had not been convicted at the time.
Wilson unsuccessfully appealed his conviction on the later charge, arguing that police had no right to use the genetic material.
"I thought of that case when [the Supreme Court] case came up," said Martha Gillespie, a public defender who represented Wilson in his appeal. "I've been there and done that."
The Maryland court compared genetic material to fingerprints, which police are allowed to use over and over if they obtained them legally. Debate over whether that is an appropriate analogy came up before the Supreme Court this week.
In an opinion on the Montgomery County case, Judge Charles E. Moylan praised the advent of DNA as a crime-solving tool.
He wrote, "The development of such a new and scientifically reliable investigative tool should give rise, in any sane society, not to a cry of alarm but to a sigh of relief."