June 07, 2004|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF
Pincus cited a 2000 U.S. Supreme Court ruling that said roadside police checkpoints to look for drugs were unconstitutional because they lacked a specific crime-control purpose and because police had no reason to suspect individuals they stopped of breaking the law.
An `essential' tool
"He overturned one of the most powerful law enforcement tools available to us today," said Montgomery County State's Attorney Douglas F. Gansler. "It has become essential in the past few years and will become even more important in years to come."
Prosecutors looking to salvage their case appealed, although state law will require that the charges be dropped if they lose. Their appeal marks the first time Maryland's highest court has been asked to rule on the DNA databank issue. The Maryland attorney general's office is handling the appeal.
Arguments against databanks have failed elsewhere. Every state has a criminal DNA databank. The only court to rule against one is a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco - but that case was reargued before the full court in the spring and it has yet to rule.
Maryland's DNA databank got its start in 1995 and was broadened in 1999. In 2001, it was expanded again to include all felons and some people convicted of misdemeanors.
Gary E. Bair, Maryland's solicitor general, said felons have reduced privacy rights because they are not ordinary citizens.
"Our position is that it doesn't matter that there is no individualized suspicion."
Taking DNA is not for the purpose of uncovering a crime, but to obtain information for use if other evidence shows a crime has been committed, his brief argues. Maryland's databank strictly limits the use of its DNA, the brief states.
Swabbing a cheek is no more intrusive than taking a fingerprint, and with a recidivism rate of 67 percent nationwide, the government and the public have an overwhelming interest in maintaining the databank, Bair said in his brief.
A decision in Raines' case is expected by July 16. Because the case is a pretrial appeal by prosecution, by law the judges have 120 days to issue a ruling.
But a ruling in Raines' favor would not spell the end of genetic criminal databanks, said Steven D. Benjamin, president of the Virginia Association of Criminal Defense Lawyers. Instead, he said, laws would be reworked to keep them in line with the Fourth Amendment.
