Maryland authorities have stopped collecting DNA samples from suspects arrested on violent crime and burglary charges after the state's highest court ruled the crime-fighting tool that has helped solve dozens of cold cases unconstitutional.
On Friday, officials from law enforcement agencies across the state said they were acting on advice from Attorney General Douglas F. Gansler to stop the practice, pending a possible appeal to the U.S. Supreme Court. Gansler has not said whether he intends to appeal the Court of Appeals decision.
The state's highest court ruled 5-2 on Tuesday that collecting DNA samples from someone arrested but not convicted violates an individual's Fourth Amendment right to be free from unreasonable search and seizure.
Meanwhile, a bank of nearly 16,000 DNA samples collected since January 2009 will remain in limbo. The samples were run through a database of cold-case evidence for matches.
"The DNA database will remain inactive and the searching of any information in it ceased today," said Gregory M. Shipley, a state police spokesman. The Maryland State Police maintain the DNA bank.
Shipley said DNA will still be taken from those who have been convicted of violent crimes or burglaries, or of attempts to commit a violent crime or burglary.
Among the agencies that will stop collecting DNA after arrests are the state police; the state Department of Public Safety and Correctional Services, on behalf of Baltimore City; and law enforcement in Anne Arundel, Baltimore, Harford and Howard counties.
The attorney general's office advised the agencies to stop collecting the samples because of the court ruling, said Lt. Mike Brothers of the Anne Arundel Police Department. He said an appeal to the Supreme Court appears to be in the works.
Gov. Martin O'Malley, Mayor Stephanie Rawlings-Blake and others have urged Gansler to take the matter to the Supreme Court.
David Paulson, a spokesman for Gansler, said the attorney general's office would not comment on any advice it may have provided to law enforcement agencies, citing attorney-client privilege.
"The office of the attorney general is still reviewing the decision and the legal landscape and is strongly considering a petition of this case to the United States Supreme Court," Paulson said.
Last month, the Supreme Court declined to take up the issue after a California man filed a petition for the justices' consideration. Ruben Mitchell was among 22 defendants indicted by a federal grand jury in Pittsburgh as part of an alleged cocaine trafficking conspiracy in September 2010.
Mitchell appealed after the U.S. Court of Appeals for the 3rd Circuit upheld a federal law that allowed the collection of DNA samples upon arrest. The court found that collecting Mitchell's DNA when he was arrested is akin to taking a suspect's fingerprints, and that Mitchell's right to privacy was diminished when he was arrested.
About half the states and the federal government authorize law enforcement to collect DNA samples after an arrest, and courts across the nation have ruled for or against the constitutionality of the practice. The U.S. Court of Appeals for the 4th Circuit, which includes Maryland, has not weighed in on the matter.
Larry S. Gibson, a professor who teaches courses on evidence at the University of Maryland's Francis King Carey School of Law, said it is unlikely that the Supreme Court will hear the Maryland case at this time. Until more case law is established in the federal courts or a split develops among the state courts, he believes the Supreme Court will regard the issue "as premature."
The Maryland Court of Appeals decision was based on a case involving Alonzo Jay King Jr., who contended that his rights were violated when his DNA was taken after a 2009 arrest for assault. The sample was used to convict him of a 2003 rape in Salisbury, for which he was sentenced to life in prison. The court reversed the rape conviction and sent the case back to Wicomico County Circuit Court.
The Court of Appeals decision left open the possibility that DNA samples can be collected after an arrest for the purpose of correctly identifying a suspect.
Scott Shellenberger, the state's attorney for Baltimore County, said he wrote a memo to his staff Friday to revert to a 1994 policy that dealt only with the collection of DNA samples from convicted felons and burglars.
Shellenberger said his office is building a case for trial against a sex offender, relying on a swab of DNA taken when the suspect was arrested.
That is one of 12 pending cases across Maryland that depend on such DNA evidence. Another 20 such DNA samples are being used in active investigations, according to data from the governor's office.
Since the General Assembly authorized police to take the samples before a suspect is convicted, law enforcement agencies have used the evidence to make 65 arrests and gain 34 convictions, state officials say.
"My fear is that another rapist is going to be set free," Shellenberger said.
Harford County Sheriff L. Jesse Bane said he is discouraged that Maryland police have to stop collecting the DNA samples.
"We're just going to have to figure out another way to deal with the violent offenders," Bane said. "This was one of the tools we had in our toolbox."