- The Enterprise
- The Recorder
Maryland’s Court of Appeals has been under attack from certain quarters since it ruled last month that the Maryland DNA Collection Act, as amended in 2008 and as applied in a case involving a Wicomico County rape, was unconstitutional. Instead, the court should be praised.
In these times, when individual rights often get treated dismissively (see the Patriot Act), the court stood up in defense of the Fourth Amendment to the U.S. Constitution. That amendment protects individuals against unlawful searches.
In a nutshell, at issue in this case was whether an arrestee’s “expectation of privacy to be free from warrantless, suspiciousless searches of his/her biological material” outweighed the state’s interests. The court ruled that it did.
The case poses an interesting test because the appellant, Alonzo Jay King Jr., is about as unsavory a character as one can find. A DNA swab taken from King in an unrelated incident six years after the rape of a 53-year-old Wicomico woman turned up a “hit” in that earlier, heinous crime.
The reaction from a number of law-enforcement officials and lawmakers — from the governor to the St. Mary’s County state’s attorney — to the high court’s ruling was swift and predictable. They implored Maryland Attorney General Douglas F. Gansler to press the court to reconsider or issue a stay of enforcing its ruling pending further appeal to the U.S. Supreme Court.
Gansler has filed a motion to that effect. In it, he argued that the state’s interest in the DNA evidence collection is at least threefold: to identify arrestees, solve past crimes and exonerate innocent individuals.
On the first point, the majority opinion of the court said the state presented no evidence that it had problems identifying King through traditional booking routines, such as fingerprint samples and a photograph.
In fact, those making the case for DNA collection argue that the swab is no more intrusive than fingerprinting, a long-standing hallmark of the booking process. Beyond that, they say a DNA sample is essentially the fingerprinting of this technologically advanced era.
But the ACLU and others argue that while fingerprinting does no more than identify someone, a DNA sample is a virtual road map of a person’s genetic code. And, they add, the consequences of building up huge DNA databanks are not fully known at this point.
Opponents also present a slippery slope argument. The DNA collection law initially applied to those convicted of sexual assaults, before being expanded to those convicted of all violent crimes. Then it was expanded to include those merely arrested in connection with a violent crime. What’s next?
To its credit, Maryland built in some protections when it amended the law in 2008. DNA samples of those exonerated or released are to be destroyed. But the very fact that protections were written into the law shows the concerns lawmakers had about violations of privacy.
It’s quite possible that the Supreme Court will agree to hear the Maryland case. And it’s also likely that next year’s General Assembly will grapple again with the law. When it was amended in 2008, legislators included a sunset provision for December 2013.
While it’s understandable that law enforcement views DNA collection from arrestees as an invaluable tool in crime fighting, other issues that get at the foundation of a free society are at stake here as well. The Court of Appeals recognized them. It, in effect, declared that in modern society, you can create all the technological, data-collecting tools you want, but the privacy principles embodied in the Fourth Amendment take precedent.