Criminal Defense Lawyer Blog
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 shamed Baltimore City public school teacher charged with eleven theft crimes almost a year ago has now pled guilty to one count of felony theft scheme. This past week in the Circuit Court in downtown Baltimore a special statewide prosecutor announced the state would only pursue one of the counts in exchange for the guilty plea. The ex-principal will now avoid what would have been a lopsided trial, as the prosecutor had ample evidence connecting the defendant to almost $50,000 of missing school activity funds. The defendant, who is currently out on bail, was not sentenced at the plea hearing. Rather, sentencing has been set for early October on the one felony count that carries a maximum jail sentence of fifteen years. There is also the possibility of hefty fines and mandatory restitution for the charge, which is classified as theft scheme with a value of $10,000 to $100,000. This offense does not carry a minimum mandatory jail sentence, unlike the embezzlement count that was dropped.
The last couple of months have been quiet on the medical marijuana front, and as a result it did not take much of a pot story to produce headlines at a variety of Maryland news outlets. Last Friday a town planner for the Talbot County seat of Easton announced that the site of a former tool manufacturing plant would receive local zoning approval to become a marijuana growing facility. The planner decided that growing legal pot classifies as agriculture, which is proper in all areas of the Eastern Shore town, save for the historical downtown area. Keep in mind that this facility would strictly be for growing, and would have no dispensing capability, or relationship to any potential local dispensary. Whether this actually turns out to be a story of substance remains to be seen, as the growing company who pitched the town planner has not yet received a state license to grow medical pot. But all the downtime created by the Maryland Medical Marijuana Commission’s methodical pace has left the people and consequently the media in a jumpy mood; nearly any small development will make headlines at this point.
News trucks and National Guard Humvees are no longer lining the streets of Baltimore, but the city is still experiencing elevated crime levels and widespread violence following riots that generated worldwide attention. Forty-two people were murdered within city limits last month, the highest monthly total in over 40 years, and millions of dollars worth of narcotics have fallen into the hands of drug dealers in the last few weeks. The murder rate is attributed by some as a direct result of a lower police presence in high crime areas, exactly the opposite of what is needed. Police in the tensest areas such as the western district of Baltimore City have allegedly shifted their priority to self-preservation rather than protecting the public. According to an anonymous supervising officer who was interviewed on CNN, cops in the western district are basically ignoring orders from the police leadership to vigorously patrol, and are just simply responding to 911 calls. This passive approach is likely causing a sense of lawlessness in certain areas, and in turn wrongdoers are becoming bolder. Although the police commissioner has no plans to step down, there is growing discontent about the department’s leadership going forward. One city councilman has publically called for a new police commissioner, stating that he knows rank and file officers have lost confidence and respect for their commander. This environment has officer moral and motivation at an all time low, and city residents are suffering the consequences.
Toward the end of the 2015 legislative session the General Assembly convincingly passed a modification of the marijuana decriminalization law. The modification served to cure an inherent defect in the 2014 decriminalization law by removing the possession of marijuana paraphernalia from the catalog of CDS criminal offenses. It was a logical and necessary fix to the ambiguous situation created by the 2014 law, which punished the possession of pot only by a civil fine, yet still punished possession of the device used to ingest the pot with criminal sanctions. This modification was expected to take effect in October of this year, thus ending the ambiguity and giving law enforcement and prosecutors more time to deal with actual issues of public safety. The only hurdle was an approval from our recently sworn governor, which at the time seemed like a forgone conclusion. But this past week Hogan flexed his socially conservative muscle and vetoed the bill, baffling some lawmakers and angering marijuana reform advocates all over the country. So for at least another year, the only thing criminal about smoking a joint Maryland is the rolling paper that keeps it together.