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Court ruling allows DNA to be used in future cases

DNA collected during police investigations can be used indefinitely to find potential matches at crime scenes under a court ruling being hailed by law enforcement but criticized by defense attorneys who fear government overreach.

Maryland's highest court, in a ruling issued this week, concluded that once a DNA sample is obtained legally, it can be used to investigate unrelated or unsolved crimes at any point in the future without triggering Fourth Amendment protections against unreasonable search and seizure.

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The decision comes as courts at every level across the country have grappled with the use of DNA. The U.S. Supreme Court decided in a Maryland case two years ago that a DNA sample was no different from a fingerprint or a booking photo.

The Maryland Court of Appeals weighed in on the case of George Varriale, who voluntarily provided a DNA sample to Anne Arundel County police in 2012 during an investigation into a rape allegation in Glen Burnie. While the sample cleared him of the alleged rape, it connected him to an unrelated 2008 burglary after the sample was uploaded to a DNA database.

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Stephen B. Mercer, chief attorney of the forensics division of the Maryland Office of the Public Defender, said Wednesday that he's concerned that the ruling could be interpreted to allow the use of DNA collected from crime victims. Those samples are typically considered crime scene evidence, he said.

"What you're seeing now is a green light for the government to use crime victim DNA and volunteer DNA in ways that were never intended," Mercer said. "That will ultimately undermine public confidence in the reliability and usefulness of DNA analysis."

Mercer also warned that police could identify family members from DNA samples held in police databases, which are linked. Some jurisdictions, Mercer said, take DNA from homicide victims for the sole purpose of potentially matching family members in future criminal investigations.

The decision "just opens up the gates for all manner of government misbehaviors," Mercer said.

Maryland State Police officials applauded the court ruling, saying that DNA is an invaluable tool for identifying lawbreakers and preventing future crimes. The agency maintains the state's DNA database.

"The use of DNA evidence and analysis continues to be an invaluable resource for law enforcement as police work to identify those responsible for serious crimes and exonerate those who are innocent," said Greg Shipley, a state police spokesman.

"The Court of Appeals decision further clarifies the lawful parameters that define the appropriate use of DNA in our ongoing work to reduce crime by identifying and apprehending those responsible."

Brian Kleinbord, chief of the attorney general's Criminal Appeals Division, said in a statement: "The Court has correctly held that the only search in this case was lawful and fully respected the privacy interests recognized and protected by the Constitution."

Varriale, who was homeless and living in a makeshift campground near the scene of the alleged rape in 2012, was indicted on burglary and related charges from a 2008 incident. Varriale sought to suppress the DNA evidence as an unlawful search under the Fourth Amendment, but a judge denied the motion in 2013.

He entered a conditional guilty plea to second-degree burglary and was sentenced to four years in prison, suspended to all but time served, and placed on two years' probation. Varriale appealed to the Court of Special Appeals, which affirmed the lower court's ruling.

The Court of Appeals agreed with the intermediate appellate court's finding.

"In this case, we shall hold that, where Varriale's consent to search was not expressly limited by him, by the state, or by law, the Fourth Amendment does not preclude the state from storing and using his voluntarily provided DNA sample and resultant DNA profile for additional, unrelated criminal investigations," Court of Appeals Judge Clayton Greene wrote.

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The ruling noted that courts in other states have reached the same conclusion: That the state did not need a warrant or additional express consent to order further testing of a DNA sample or upload it to the database for comparison with other DNA profiles.

Byron Warnken, a University of Baltimore law professor, said that the Court of Appeals "has been very pro-prosecution in what few DNA cases it has had."

"If you're a cop and you come and you ask me can you search my car, I haven't yielded my Fourth Amendment rights for all time," Warnken said. "They're going to come back in 20 years and search my car? That's what's happening here."

Warnken represented Glenn J. Raynor, who is serving a 100-year sentence for a 2006 Harford County rape. Raynor did not consent to turn over his DNA, but police were able to obtain it from sweat he left on a chair at a police station and used it to match him to the crime scene.

The Court of Appeals held that authorities acted correctly in 2014. Earlier this year, the U.S. Supreme Court declined to hear the case.

In 2013, the U.S. Supreme Court also upheld a Maryland Court of Appeals' ruling that police could obtain DNA from people arrested — but not convicted — to link them to unsolved crimes.

The case centered on an Eastern Shore man, Alonzo Jay King Jr., who was arrested in 2009 on assault charges and whose DNA matched an unsolved rape from 2003. He was later convicted of the rape.

Maryland launched its DNA database in 1994, with the first positive match occurring four years later. The number of hits has grown rapidly. In May, 4,000 positive matches were recorded, according to Maryland State Police.

Legislation in 2009 required those arrested and charged with qualifying violent crimes or certain kinds of burglaries to submit DNA samples, which are kept in one database with about 29,000 samples. Another database of convicted offenders has more than 116,000 samples.

Jayann Sepich, who co-founded the advocacy group DNA Saves after her daughter, Katie, was killed in 2003, said DNA is not that different from a fingerprint or other personal characteristics. She has her DNA sequence printed on the back of her business card.

"It's only 13 markers out of thousands," she said. "They don't have the ability to disclose anything genetic or medical about a person. There's no private information that goes into [the database]. There's no name, no Social Security number. The system was set up to really protect privacy and to offer no more information than would be available in a fingerprint.

"It does have the power to solve crimes and prevent crimes," she added, "and that's what's so important."

Judge Glenn Harrell, who is now retired but participated in the Varriale case, wrote a dissenting opinion. While suspects are asked to fill out consent forms before giving DNA samples, Harrell raised questions about whether a homeless person living in the woods would be able to renegotiate the terms to specify that genetic information not be used to investigate other crimes.

"This is beyond the ken of a typical lay person, even one who is not a homeless person living in the woods," Harrell wrote. "Unless and until the public defender or private criminal defense attorneys open offices in the woods, the majority's standard, as applied in this case, represents an unreasonable expectation of what a typical reasonable person in Varriale's shoes would know to do."

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The Associated Press contributed to this article.

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