Law Enforcement Joint Statement Regarding DNA Collection Ruling

[Howard Hartman]

	DEPARTMENT OF POLICE MEDIA SERVICES DIVISION 2350 RESEARCH BOULEVARD ROCKVILLE, MARYLAND 20850-3294
FOR IMMEDIATE RELEASE April 25, 2012	FOR MORE INFORMATION:                         Media Services Division, 240-773-5030

Montgomery County State’s Attorney’s Office,
Montgomery County Police Department,
and Montgomery County Sheriff’s Office Issue
Joint Statement Regarding DNA Collection Ruling

Today, the Montgomery County State’s Attorney’s Office, the Montgomery County Police Department, and the Montgomery County Sheriff’s Office released the following statement in response to the Maryland Court of Appeals Decision in Alonzo King v. State.

In a 5-2 decision yesterday, Maryland’s highest court overturned a home invasion rape conviction, while simultaneously delivering a major blow to law enforcement throughout the State of Maryland. The Court struck down a provision of the Maryland DNA Collection Act which allowed for the taking of DNA from individuals arrested for crimes of violence and burglary. Under this Act, DNA collection is routinely accomplished by rubbing a cotton swab on the inside cheek of a person arrested for only the most serious crimes.

Since the law was enacted in 2009, there have been 1,325 DNA hits statewide that have solved previously open criminal investigations; 190 of these have been from DNA samples that were taken upon arrest as opposed to the samples taken upon conviction. In Montgomery County alone, there have been 106 hits that have solved cases, including 23 based upon samples taken upon arrest. Many of these hits were for burglaries. There were over 3,000 burglaries in Montgomery County last year alone. Because police have collected post-conviction samples in serious cases since 1994, there are many more hits related to those samples. The goal was to use this provision to increase the number of post-arrest hits that would subsequently lead to case closures.

This provision can also prevent individuals from being wrongly accused. Just this month in our county, this provision enabled law enforcement to exonerate a criminal suspect.

In recognizing that this ruling is a setback to public safety, Montgomery County Department of Police Chief J. Thomas Manger said, “These DNA hits enable law enforcement to apprehend repeat offenders that prey upon our citizens thereby making our communities safer for everyone.”

In reacting to the Court’s ruling, Montgomery County State’s Attorney John McCarthy said, “I reject the rationale of the majority opinion and believe that the dissenting opinion accurately captures the state of constitutional law in the United States. The taking of a cheek swab is no more of an infringement of a person’s fourth amendment right to privacy than the taking of fingerprints, which is a routine booking procedure done hundreds of times daily across the State of Maryland.”

Montgomery County Sheriff Darren Popkin noted that yesterday’s ruling will enable a convicted rapist to go free. He pointed out that, “many of the arguments made by the court yesterday were used almost a century ago against the taking of fingerprints which is now routinely accepted.”

Chief Manger, Sheriff Popkin and State’s Attorney McCarthy urge Attorney General Douglas Gansler to seek a writ of certiorari to the Supreme Court of the United States to hopefully have this ruling overturned.

[Richard Boltuck]

Connected Communities has included critical statements from law enforcement agencies only regarding the Maryland Court of Appeals' (COA's) recent decision in Alonzo Jay King, Jr. v. State of Maryland.

I would have hoped that CC would strive for greater balance in presenting this important public issue, for instance by including links or quotes from the ACLU's amicus brief which argued for the outcome the court reached (http://www.pdsdc.org/Resources/SLD/K...us%20Brief.pdf), or even links or quotes from the majority's own opinion (http://mdcourts.gov/opinions/coa/2012/68a11.pdf ), both of which are readily available on the web. Then CC readers could make up their own minds.

Basically, the COA held that people arrested but not convicted may not be "searched" in the form of obtaining a swab sample of DNA for the purpose of comparing en masse to a database of DNA collected at random crime-scenes. Collecting samples from arrestees is only permitted under the Fourth Amendment to the Constitution upon particularized suspicion and with a search warrant. If Mr. King were convicted of the crime for which he had been arrested initially, then his reduced expectations of privacy would permit collecting his DNA for inclusion in a database of DNA from convicted felons; but upon arrest, he was presumed innocent and had the same rights as all other citizens -- as you or I. For the same reason, the number of cases "solved" through comparison of DNA collected post-arrest ought to be viewed skeptically, since in all those instances where those arrests proved justified through eventual conviction, the same DNA sample could have been obtained legitimately, without eviscerating the Fourth Amendment.

Hence, the various claims that police departments make that Mr. King could never be identified as responsible for the rape, the conviction for which the COA overturned, are overblown. If he were convicted of the crime for which he was arrested in the first instance, his DNA could still have been collected and compared (as is the practice in many jurisdictions, including in Washington, DC) -- and the state would not now be facing the challenge of retrying him without DNA evidence. (If, of course, the state failed to convict Mr. King in the original matter, than he would be as innocent as any of us in the eyes of the law, and entitled to the same protections from unreasonable search that all of us take for granted every day). In this respect, the legislature's overreach in establishing post-arrest DNA collection is responsible for the possibility that Mr. King will never be held to account for the rape -- not the COA -- or the founding-father authors of the Fourth Amendment.

The decision is thus part of a long sequence of court decisions establishing Fourth Amendment jurisprudence that, while often disturbing to police departments that wish for unfettered access to an expansive array of "effective" techniques, protect ordinary citizens from the abusive tactic of fishing expeditions that cast a wide net to obtain evidence on the mere possibility that it will solve a crime. For the same reason, house-to-house searches in a community without grounds for individual suspicion and a resulting search warrant are prohibited, even if such searches were "effective" -- and we all ought to feel more secure as a consequence. Such search would make the citizen the servant of the government rather than the other way around, and would decimate our entitlement to personal privacy.

By only reporting what police authorities have to say about the COA decision, this entire perspective has been neglected in CC's coverage, which does not serve your readers very well.