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Police ruse to collect DNA from rape suspect OK, court rules

When Anne Arundel County police Detective Tracy Morgan identified a suspect in the brutal rape of a Russian teenager visiting on an exchange program, she pulled a trick familiar to anyone who watches police dramas on TV.

She had the man arrested on an old warrant, put him in a cell and served him a McDonald's meal. He ate and threw the trash on the floor. Morgan picked up the discarded cup, sent it for testing and matched the DNA found on the edge to evidence recovered from the victim.

Kelroy Williamson was found guilty of rape in 2008 and sentenced to two consecutive life terms in prison. On Thursday, the Maryland Court of Appeals upheld the conviction and endorsed the police ruse, the subsequent testing of the genetic material and the entry of the DNA into a database used to help close unsolved cases.

The state's highest court, in a 5-2 decision, noted in its opening line that "the writers of the NBC television drama Law & Order Special Victims Unit would be hard-pressed to author an episode full of more issues involving DNA than found in this case."

The then-18-year-old woman was attacked in September 2002 near Pioneer City in Anne Arundel County. She was walking to work when Williamson pulled her off the side of a road, dragged her into the woods, tied her up with her own book bag, raped and choked her, and then left her for dead.

Police were unable to solve the case. But they entered DNA taken from the victim into the statewide database. No match was found.

In 2004, armed with a grant, Anne Arundel County police were able to send DNA swabs from 50 unsolved cases to a lab. That included a swab from a 1994 attack in which a woman claimed Williamson had raped her. The suspect contended the sex was consensual, and he was convicted of assault.

At the time, police took Williamson's DNA sample, It was never analyzed, but it was among the DNA samples sent to the lab in 2004. Police learned that the sample not only put Williamson at the 1994 attack, but also connected him to the 2002 rape of the Russian teen.

Morgan wanted to be sure, so she found the old warrant, had Williamson arrested and engineered the ruse with the McDonald's cup. The evidence matched, and Williamson was charged and convicted. Noting the brutality of the crime, the Circuit Court judge said Williamson "should never walk in public again" and the prosecutor lamented that the victim "saw the worst our country had to offer."

Trickery has always been an accepted police tactic.

Detectives are allowed to lie while interrogating suspects, and Thursday's ruling noted that courts have allowed DNA evidence taken from hair discarded during a convict's haircut, even though it was the FBI that ordered the haircut to obtain a sample.

Similarly, Maryland judges said in the Williamson case that he "unequivocally abandoned the McDonald's cup" and that because it was trash, police could do with it as they pleased, including analyzing it and comparing it to samples taken at crime scenes. "The cup was abandoned property and not entitled to Fourth Amendment protection," the ruling states.

But Williamson's attorney argued that just because Williamson abandoned the cup didn't mean he also abandoned privacy rights to his own genetic material. And while collecting the DNA might be legal, the lawyer argued that taking the extra and technologically complicated stop of breaking it down required a warrant.

Chief Judge Robert M. Bell wrote in a dissent that Williamson enjoyed a "reasonable expectation of privacy of his DNA."

He called the "doctrine of abandoment" an "easy and even simplistic" approach "to a most complex problem" that allowed the judges to sidestep deciding whether Williamson's DNA, even if legally obtained under subterfuge, could be used for other purposes.

Bell noted that a briefcase left out in the open might be taken by police but that they would need a warrant to open it. He wrote that under the majority's opinion, there would be no need for laws regulating how the state collects and uses DNA.

And that, the chief judge said, would mean "a lot of constitutional questions and litigation could thereby be avoided."

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