Maryland Attorney General Douglas F. Gansler took a first step Tuesday toward an appeal to the U.S. Supreme Court in a high-stakes case that blocks police across the state from collecting DNA samples when a person is arrested in connection with a violent crime or burglary.
Gansler asked Maryland's highest court to reconsider its recent ruling or allow police to continue to take the samples while the state asks the Supreme Court to step in. At issue is whether taking the samples before a conviction violates an individual's constitutional rights.
"All this ruling does is allow people to get away with very, very serious crimes," Gansler said in an interview. "The reasoning by the Court of Appeals doesn't make a whole lot of sense to most people."
If the Court of Appeals does not reconsider its ruling, the state will seek a review by the Supreme Court, Gansler wrote in a six-page motion.
Opponents of the sampling procedure argue that it tramples on the Fourth Amendment right to be free from unreasonable search and seizure. They are also concerned that a DNA sample allows police to access a wealth of personal and private information.
Stephen Mercer, chief attorney for the state office of the public defender's forensics division, said it is unreasonable for police to seize a person's genetic information to connect him or her to past or future crimes, and place that person under "lifelong genetic surveillance."
The Court of Appeals could make a decision as early as May 17.
Law enforcement officials said last week that they would temporarily stop collecting the DNA samples until a final court decision is rendered. Meanwhile, the statewide DNA database, comprising nearly 16,000 samples, will remain in limbo.
The cases involve DNA samples taken when a person is arrested in connection with violent crimes, such as a murder or rape, burglary or an attempt to commit a violent crime or a burglary. Samples are entered into a database and checked against evidence collected in other cases to find matches.
The Court of Appeals ruling leaves open the possibility that a post-arrest DNA sample can be collected if it is needed to identify a suspect.
The ruling does not affect DNA samples taken after a conviction.
The case before the Court of Appeals involved Alonzo Jay King Jr.'s conviction in a 2003 rape of a 53-year-old woman in her Salisbury home. The DNA sample used to convict him was collected after King was arrested in 2009 on unrelated assault charges.
The Court of Appeals reversed King's life sentence and sent the rape case back to Wicomico County Circuit Court; his earlier assault conviction was not affected. King remains in jail as the case plays out.
Mercer said that collecting DNA after an arrest is similar to kicking down someone's door and searching their home or paging through their financial records.
The case is a "landmark case because it is requiring technology to be shaped around our Fourth Amendment principles, rather than our Fourth Amendment principles being shaped around technology," Mercer said.
But Gansler said the privacy argument is almost "silly," because DNA samples are used for the "exact same" purpose as fingerprints.
Gansler's motion said the ruling undermines public safety objectives of the General Assembly when lawmakers authorized the post-arrest DNA collection.
The law, which became effective in 2009, has "generated evidence that could help to resolve 190 unsolved cases," Gansler wrote. "Moreover, as other courts have recognized this aid to effective law enforcement also frequently serves the interest of justice by exonerating those who have been wrongly convicted."
Post-arrest DNA samples have resulted in 34 convictions since 2009, according to data from the governor's office. Twelve cases are pending trial and 65 arrests have been made.
Mercer said the 190 unsolved cases Gansler cites is a misleading figure, and the DNA sampling is not as significant a crime-fighting tool as authorities suggest. In 2009, he said, the DNA samples resulted in 37 matches, 10 formal charges and one conviction. In 2010, the samples matched evidence in 60 other cases and led to 13 formal charges and three convictions.
Mercer said he is also concerned about the racial breakdown. More than 60 percent of the samples in 2009 and 2010 were from individuals who are black.
"What law enforcement is doing here is stockpiling the DNA of a racial minority that's justified by obtaining four convictions in two years," Mercer said. "Do the math."
About half the states and the federal government authorize the collection of post-arrest DNA samples.
Gansler said in the interview that the Court of Appeals ruling contradicts most of the decisions in similar cases across the country. He said he is not aware of any other requests for the Supreme Court to rule on the matter.
In March, the justices rejected a request to take up the issue. In that case, a California man was indicted by a federal grand jury in Pittsburgh in a cocaine trafficking case. The man, Ruben Mitchell, asked the justices to reverse a ruling that found collecting DNA is a 21st-century fingerprint.
"The Court of Appeals is out on a very thin limb," Gansler said.