Posse Comitatus Blog

Police in Maryland can resume collecting DNA from suspects charged — but not yet convicted — in violent crimes, and the U.S. Supreme Court might be inclined to let them do so permanently.

U.S. Chief Justice John G. Roberts Jr. issued an opinion Monday saying there is a “fair prospect” the court will overturn the Maryland Court of Appeals controversial Alonzo Jay King Jr. v State of Maryland decision, which prohibited DNA collection from suspects charged — but not yet convicted — in violent crimes and burglaries. And until the nation’s highest court can more thoroughly consider the issue, Roberts put the King decision on hold — meaning police in Maryland can resume collecting DNA.

“This stay will allow Maryland the uninterrupted use of this critical modern law enforcement tool that helps police and prosecutors solve some of Maryland’s most serious violent crimes,” Maryland Attorney General Douglas F. Gansler said in a statement.

The Supreme Court’s opinion is the latest development in an ongoing debate over whether — and when — it is legal to collect DNA from criminal suspects. Federal and state courts across the country have issued mixed opinions. The governor’s office says 26 states have legislation similar to Maryland’s.

It is precisely because of that debate that the Supreme Court intervened. In his opinion, Roberts wrote that the Maryland Court of Appeals decision conflicts with decisions by two other federal appellate courts, as well as a decision by Virginia’s Supreme Court. Roberts wrote that “given the considered analysis of the courts on the other side of the split, there is a fair prospect that this Court will reverse” the King decision.

Stephen Mercer, the chief attorney for the Maryland Office of the Public Defender’s Forensics Division, said the opinion is merely a “preliminary round” in an ongoing legal fight.

“We continue to believe the court, in the end, will vindicate the Fourth Amendment rights of Mr. King and all Marylanders in their right to genetic privacy,” Mercer said.

The case centers on a Maryland law, which, starting in 2009, allowed police to collect DNA from suspects after they were charged with violent crimes or burglaries. Before then, police had been able to collect DNA only from convicted criminals.

Alonzo Jay King Jr. challenged the law after he was arrested in April 2009 on assault charges. Prosecutors used a DNA swab from that case to connect him to a 2003 rape. He was eventually convicted and sentenced to life in prison for the rape.

The Maryland Court of Appeals sent King’s case back to the circuit court and threw out the DNA evidence, saying investigators violated his Fourth Amendment rights in taking his genetic material and comparing it with old crime scene samples. The ruling was condemned by prosecutors and police chiefs, who said it would hamper detectives’ ability to solve cold cases and jeopardize the convictions of 34 robbers, burglars and rapists whose genetic samples were taken after they were charged in separate cases.

On the advice of the attorney general’s office, police suspended DNA collection in the wake of the ruling. Now, it seems, they will be able to start collecting again. In his opinion, Roberts wrote that the Maryland Court of Appeals ruling creates “an ongoing and concrete harm to Maryland’s law enforcement and public safety interests” — even if it is only in effect for a matter of months.

Without a stay, “Maryland would be disabled from employing a valuable law enforcement tool for several months — a tool used widely throughout the country and one that has been upheld by two Courts of Appeals and another state high court,” Roberts wrote.

The Supreme Court had already temporarily stayed the decision while it waited for input from the Maryland Public Defender’s Office. In its filing opposing the stay, the public defender’s office argued that the King ruling was not causing any immediate harm, noting that Maryland’s attorney general had waited nearly eight weeks to ask for a stay.

Maryland authorities must file a petition for certiorari to have the Supreme Court consider whether to overturn the King ruling. In his statement, Gansler said he intends to do that next month.