DNA collection and preservation by law enforcement has been one of the more hotly contested privacy issues of the last decade. The presence of a defendant’s DNA at a crime scene is often the most compelling state’s evidence at trial, while the lack of DNA at the scene can be equally as strong for the defense. Maryland law gives police the right to take a suspect’s DNA sample in certain arrests, and this procedure is usually done with a minimally evasive cheek swab. No warrant is required to take the swab pursuant to a federal court decision from two years, which established that DNA triggers similar privacy rights to a booking photo or a fingerprint. Additionally submitting to a DNA sample is not testimony, and therefore a defendant does not have the right to consult with an attorney prior to opening up for the swab. There’s no denying the power of DNA evidence in open law enforcement investigations, as both the defense and prosecution have hung their hat on it thousands of times. But controversy arises when DNA collected for an entirely different reason is used to solve a cold case, or a criminal case with no leads. Recently, The Maryland Court of Appeals handed down a decision that may once again spark the nationwide DNA debate.
Three years ago an Anne Arundel County man voluntarily submitted to a law enforcement DNA swab after he was suspected of being involved in a rape. The sample didn’t match and the man was cleared of any wrongdoing in the rape, but just one year later he was indicted on a burglary charge that had actually occurred five years prior. Police had kept his voluntarily submitted sample and plugged it into a database for the cold case burglary. When the sample matched the man felt he had no defense, and pled guilty to a four year suspended sentence. The defense appealed stating that keeping and using the man’s DNA for another purpose than the rape case amounted to an illegal search and seizure that violated the Fourth Amendment. The Maryland high court judges disagreed, and ruled that once police lawfully obtain a person’s DNA they are free to keep it and use it for any law enforcement purpose. Once they have it, they get to keep it.
The decision by the Court of Appeals is hardly groundbreaking. Police have been holding on to fingerprints for decades. But that’s not even the most compelling argument for the government. The protections of the Fourth Amendment prevent law enforcement from illegally infringing on our right to live as private citizens. When cops overstep their boundaries to obtain evidence then it is a judge’s duty to suppress everything that flows from the illegal intrusion. But when law enforcement conducts a legal search or seizure any other unexpected pieces of evidence they recover are fair game. If cops execute a search warrant looking for drugs and instead find illegal firearms and stolen property, then the defendant will be charged accordingly. All the evidence will be admissible. It’s the same principal with DNA collection; if law enforcement lawfully takes a sample for one investigation, they are free to use it if it matches on another investigation. This decision is not one that will please defense attorneys, but it’s hardly the most surprising one to come out of Annapolis.
The Blog will continue to monitor the DNA collection and retention issue around the country, and may post a follow up article in the future. Benjamin Herbst is a criminal defense lawyer who handles burglary and theft cases in all Maryland jurisdictions. Contact Benjamin for free consultation about your case at 410-207-2598.
Court ruling allows DNA to be used in future cases, baltimoresun.com