Calling DNA collection from those arrested for certain felonies a "valuable tool for investigating unsolved crimes," Chief Justice John G. Roberts on Monday said there was a "fair prospect" that the nation's high court would overturn a Maryland ruling striking down the practice as unconstitutional.
The U.S. Supreme Court has not yet agreed to take on the issue, but statements made by Roberts in a four-page opinion signaled that was likely. The Maryland attorney general's office plans to file a petition asking for the court's review by mid-August.
State officials and local law enforcement authorities lauded the development, saying that DNA collection saves lives and clears the streets of dangerous criminals by matching arrestees with prior crimes. But defense attorneys and others questioned what it could mean for civil rights.
"It's a valid concern to want to place limits on law enforcement's collection of evidence from people who are presumed innocent at the time of arrest," said Douglas Colbert, a professor at the University of Maryland School of Law.
In April, Maryland's Court of Appeals overturned the rape conviction of Alonzo Jay King Jr., who had been identified as a suspect through DNA collected during a separate arrest on assault charges. King's Fourth Amendment protections against unreasonable searches and seizures outweighed the state's interest in collecting the genetic material, the judges found.
The ruling was decried by police, the governor and Baltimore's mayor. And it was challenged by Attorney General Douglas F. Gansler, who asked the Supreme Court to set aside the ruling while his office prepared the petition.
Roberts complied on July 18, issuing an order that temporarily allowed police to continue gathering DNA from those charged with violent crimes and burglary.
Monday's opinion extends the directive while the Supreme Court considers whether to hear the King case. Roberts said there was a "reasonable probability" that the justices would take it up.
In a statement issued Monday, Gansler applauded the extension and called DNA collection a "critical modern law enforcement tool that helps police and prosecutors solve some of Maryland's most serious violent crimes."
From 2009, when DNA collection began, through 2011, genetic matches from arrestees led to 58 criminal prosecutions, Gansler noted in a court filing.
The Maryland Public Defender's Officer, which represents King, countered that the prosecution rate is tiny considering the amount of data collected. In 2011 alone, more than 10,000 samples were collected, and only 19 of them led to an arrest while fewer than half of those resulted in convictions.
Stephen B. Mercer, chief attorney within the Maryland Public Defender's Forensics Division, said Monday that he's confident the case is far from decided.
"It's a preliminary round," Mercer said in a brief telephone interview. "We continue to believe the court in the end will vindicate the Fourth Amendment right of Mr. King and all Marylanders in their genetic privacy."
Other courts have come down in favor of collection. Roberts opinion notes that federal appeals courts in two circuits — the ninth circuit in the West and the third circuit in the Northeast — along with the Virginia Supreme Court have previously upheld such searches.
Maryland's conflicting opinion will likely spur the U.S. Supreme Court to take on the issue, said Ken Klukowski, a professor at Liberty University School of Law in Virginia and a fellow with the conservative-leaning American Civil Rights Union.
"That is about as clear of a signal as you can get," he said of Roberts' opinion.
Klukowski pointed out that the U.S. Supreme Court has previously ruled that involuntary blood draws are constitutional under certain circumstances — a much more invasive process than swabbing someone's cheek for DNA.
"I'd say the odds are pretty good that the swab is going to be upheld," he said. "So long as we are talking of a person who was constitutionally arrested … using this technology to better identity the person and to see if they are connected with other unsolved crimes does not violate the Fourth Amendment according to [its] original meaning or according to how the Supreme Court has interpreted it over the years."
Throughout the state Monday, police and prosecutors praised the practice.
Anthony Guglielmi, chief spokesman for Baltimore police, said his agency is a "huge proponent" of law enforcement's ability to collect DNA, which pays "significant public safety dividends."
Baltimore County State's Attorney Scott Shellenberger called Roberts' opinion "a very positive sign." And Harford County Sheriff L. Jesse Bane held out hope that the Maryland ruling would be overturned.
Bane's office stopped collecting DNA after the state Court of Appeals decision came down. He said he plans to consult with prosecutors about resuming the process in light of the Supreme Court stay that has been extended.
"Not that I'm one who likes to take exception to anything the courts say," Bane said, "but DNA is a very valuable tool" that not only identifies criminals, but clears those wrongly arrested.
A spokeswoman for Gov. Martin O'Malley called DNA collection a "crucial part" of state strategy in fighting violent crime." And a spokesman for Baltimore Mayor Stephanie Rawlings-Blake said she was "pleased that Justice Roberts extended the stay. It is the right course of action."
But Colbert, the Maryland law professor, urged caution.
"I would share every citizen's interest in wanting to concentrate on individuals that may represent a danger to others," he said. "But certainly, [we should] place significant restriction on law enforcement's ability to engage in across-the-board practices."
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