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Maryland high court rules police can use volunteered DNA
Maryland’s high court has thrust the state into a national debate over how police collect and use DNA evidence, issuing its third decision in as many years governing when law enforcement practices cross the line to unconstitutional invasions of privacy.
In a 5-to-2 opinion, the state’s Court of Appeals ruled this past week that police can take a DNA sample from a voluntary donor in an investigation and use the resulting profile to investigate other crimes without a court order, as long as the donor did not expressly limit his or her consent.
Dissenting judges said the decision will have a chilling effect on victims, relatives or others who volunteer their DNA to help police, leaving them with fewer legal protections over the use of their genetic material than those enjoyed by people convicted of a serious crime.
The opinion follows a string of state decisions that have probed the legality of expanding DNA collection beyond convicted offenders, the growing power of technology to test tiny amounts of DNA naturally shed by people without a body search, and whether unrestricted testing of lawfully obtained DNA amounts to a form of lifetime genetic surveillance.
“In the physical world, you know what you’re consenting to if police say, ‘Can I search your car?’ ” said George Washington University law professor Orin Kerr, a former federal prosecutor and expert on criminal procedure and technology. “With DNA and with computers, people might not know what consent means, how much information is contained there and what can be done with it.”
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