Court, with reservations, rules DNA databank is constitutional

4-3 margin, opinions show concerns about collection

August 27, 2004|By Lisa Goldberg | Lisa Goldberg,SUN STAFF

Maryland's DNA databank survived a constitutional challenge in the state's highest court by the barest of margins but left a majority of the court's judge's troubled by the implications of collecting genetic profiles, according to a series of opinions issued yesterday.

The opinions explain, for the first time, the reasoning behind the Court of Appeals' decision last month to reverse the ruling of a Montgomery County judge who threw out DNA evidence in a rape case. In that case, Montgomery Circuit Judge S. Michael Pincus ruled that the collection of Charles Raines' genetic profile, which had been stored in the state's DNA databank since 1999, violated his Fourth Amendment protection against unreasonable search and seizure.

The opinions show a deeply divided court. It upheld the decade-old law establishing the state's DNA databank by a 4-3 margin, and two judges who voted with the majority wrote separate concurring opinions expressing concerns about the nature of the intrusion.

"I cannot agree with the majority that prisoners, or for that matter, all convicted felons, merely because they are incarcerated, lose the expectation of privacy for bodily fluids," Judge Irma S. Raker wrote in a concurring opinion.

Raker and Judge Alan M. Wilner agreed, however, that the state's DNA databank law is constitutional. Both said they agreed with the court's primary opinion that DNA profiles are a more exact way of identifying prisoners than fingerprints and therefore serve a government interest.

Yesterday, Raines' lawyer, Stephen B. Mercer, said he was heartened by the divisions on the court. Raines was indicted last year in a 1996 rape after his DNA profile, which was stored in the databank as a result of a 1982 robbery conviction, was found to be an apparent match to the case's evidence. His case is pending.

"This is truly a very important constitutional question, and the fact that there is such a sharp division in opinion - not only in the result but in the basis for the result - I think indicates that the issue is far from being settled," Mercer said. "It reaffirms how important this question is, just because of the huge implication of the government amassing this database."

The reasoning in the court's primary opinion, on which two judges agreed in full, marks a departure from more than two centuries of constitutional law, he said.

The U.S. Supreme Court has required some suspicion of wrongdoing to justify a search, he said. But in the primary opinion, Judge Dale R. Cathell instead applied a balancing test - government interest vs. the privacy rights of a group of people with "diminished" rights, Mercer said. State law authorizes DNA collection from all felons and some people convicted of misdemeanors.

Maryland Attorney General J. Joseph Curran Jr. said there are times, such as mandatory drug testing, when searches can be conducted when there is no suspicion.

Despite the divided court, he said, he is pleased that the majority ruled in favor of the law and allowed authorities to continue using an effective tool in efforts to solve crimes and exonerate those who have been wrongfully convicted.

"The main thing is that the majority has concurred with our position," he said.

In his opinion, Cathell said DNA databanks nationwide have been found to be constitutional. Inmates have a "diminished expectation of privacy," and the DNA collection method in the Raines case was only a "minimal physical intrusion," he wrote. That intrusion "is outweighed by the legitimate governmental interest in identifying persons involved with crimes, including vindicating those falsely convicted," he wrote.

In a dissent written by Chief Judge Robert M. Bell, three of the court's judges took issue with the law and the reasoning of the majority.

"Although the intrusion of a ... swab may be minimal in a physical sense, it certainly is great when the vast amount of personal and private information DNA contains is considered," he wrote. The state has not given a good reason "that would justify any intrusion upon [Raines'] constitutionally-protected privacy interest in his own body."

Yesterday, Mercer said he was considering whether to ask the Supreme Court to take a look at the Raines case.

In the meantime, he and officials with the Washington-based Electronic Privacy Information Center, which filed a brief on Raines' behalf, said they expect the databases to continue to grow and broaden their reach.

"With the weight of judicial opinion behind this, I can't imagine it will go away anytime soon," said Marcia Hofmann, an attorney with the center.

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