Maryland's DNA databank, a potent tool of police and prosecutors, will be tested today when defense lawyers for a rape suspect ask the state's highest court to rule that forcing felons to give DNA samples is unconstitutional.
At stake is the growing bank of what now holds 29,000 genetic profiles - a database that Maryland State Police say has yielded 131 apparent matches to other cases or people, and 149 more that aided investigations.
Convicted armed robber Charles Raines is challenging the state law that landed his DNA in the state databank and enabled Montgomery County prosecutors to allege last year that he raped a woman in 1996.
"There has to be some objective measure that the individual has committed a crime before you can do a search," said Stephen B. Mercer, the Rockville lawyer defending Raines.
Defense lawyers say this is a cutting-edge issue. DNA databanks encompass an increasing number of people. Advances in DNA analysis and information-sharing open the possibility that DNA collected for one purpose will be used for another.
But the state attorney general's office argues that DNA collection is constitutional. There is a strong governmental interest in maintaining the database but only minimal intrusion on felons, a group that has reduced privacy rights, the office argues in court documents.
Prosecutors say losing any part of the databank would be troubling for police, prosecutors and crime victims - as well as for people exonerated of crimes by DNA.
For example, DNA testing in 1993 exonerated Kirk Bloodsworth of the 1984 killing of a 9-year-old girl in Rosedale, and last year the databank identified a convicted sex offender, Kimberly Shay Ruffner, as the attacker. The first cold-case match within the Maryland database was in 2001, tying Robert Marshall Eiseman, imprisoned for a Montgomery County attack, to the 1988 rape of a woman near Annapolis.
Historically, general warrants - allowing nearly unrestricted seizure authority - have not been popular in this country. They grated so much on American colonists that they contributed strongly to their break from the British crown.
"And those concerns probably still exist today in a high-technology world with more intrusion capability," said Jose F. Anderson, a University of Baltimore law professor and former supervising attorney of the appellate division of the Maryland Public Defender's Office.
"I think there are lots of well-reasoned ideas that all intrusions should be preceded by some level of justification. The question is: Is his status as a felon enough?" Anderson said.
It absolutely is, says former federal prosecutor Abraham A. Dash, a law professor at the University of Maryland. People convicted of crimes can be told what to wear, where they can go and more.
"Once someone has been convicted, their expectation of privacy is very limited," he said.
The defense contends that taking DNA for the databank violates Fourth Amendment constitutional protections against unreasonable searches and seizures and rights to privacy.
DNA, Mercer said, can be the basis of discrimination: "It contains information about a person's pedigree, propensity for disease, race, ethnicity. There are studies that suggest it may reveal a person's sexual orientation."
`Potential for misuse'
"The court cannot decide this case without seeing the potential for misuse," Mercer said.
The Electronic Privacy Information Center, a civil liberties advocacy center in Washington, has weighed in. In its brief, the center contends DNA collection amounts to a slippery slope that could turn a databank into a paternity testing service, a research gold mine for scientists, a health-information source and more. The military's DNA collection, designed for identifying soldiers lost in combat, has since been opened to law enforcement, the center notes.
The Maryland attorney general's office disagrees.
In its written arguments, the office described what has become an increasingly common scenario - a "hit," or apparent match, in a cold case.
On July 14, 1996, a woman was raped and robbed in Wheaton. Police had no suspect. Raines, who had been convicted of a 1982 armed robbery, had his cheek swabbed for DNA in 1999.
In October 2002, Montgomery County police submitted DNA from the Wheaton rape case to the DNA databank. They got an apparent match to Raines. They took a fresh sample from him and concluded that the likelihood of the DNA from the rape coming from anyone other than Raines was one in 6 billion. Raines was charged with rape, according to court records.
Raines, now 40, challenged it. He scored a victory when Montgomery County Circuit Judge S. Michael Pincus ruled in January that keeping the DNA databank for general "what if?" law enforcement purposes violated the Fourth Amendment.