Police may use trash to get a suspect's DNA

High court upholds county rape conviction and ruse police used to get it
By SCOTT DAUGHERTY, The Capital Staff Writer

Apr. 25, 2010

Police may sift through a suspect's trash, collect a genetic sample and send it off for DNA testing without a warrant, the state's highest court ruled last week in upholding a 2007 county rape conviction.

The 5-2 opinion by the state's Court of Appeals - which was issued Thursday in Annapolis - drew praise from prosecutors who said they had "no doubt" a county police detective was in the right four years ago when she tricked Kelroy Williamson into throwing away a fast food cup and unwittingly giving her a DNA sample.

"I've always thought it was legal, and apparently now five judges do as well," State's Attorney Frank Weathersbee said.

District Public Defender William Davis, who represented Williamson at trial, blasted the majority opinion, though. He said the court is ignoring the U.S. Constitution's protection against unlawful search and seizure, and that Chief Judge Robert M. Bell and Judge Clayton Greene Jr. got it right in their dissenting opinion.

"They aren't chipping away at the Fourth Amendment, they are taking a jackhammer to it," Davis said. He expects police departments across the state to "pick up this opinion and run with it."

"It opens up the door for the police to just follow you around and pick up your DNA and put it in a database," he said.

The opinion stems from a Sept. 21, 2002, rape of a Russian exchange student that police linked to Williamson in 2006 with the help of DNA.

"The writers for the NBC television series 'Law & Order: Special Victims Unit' would be hard-pressed to author an episode full of more issues involving DNA than found in this case," Judge Lynne A. Battaglia wrote in the court's majority opinion.

Williamson, 42, of Baltimore, was convicted Dec. 7, 2007, of first-degree rape, first-degree sex offence and numerous lesser charges. He was sentenced in March 2008 to two consecutive life sentences.

According to court testimony, Williamson attacked a then-18-year-old woman in September 2002 in Severn as she walked to work. He grabbed her off the side of a road, dragged her into the woods and tied her up with her own book bag before raping her and leaving her for dead.

The Capital does not identify victims of sexual assault.

Police were unable to solve the case until 2006, when a lab matched a sample from the victim to a sample from a 1994 attack in which Williamson was involved.

In the 1994 case, Williamson was charged with raping a woman, but ultimately convicted of battery.

Wanting to be sure the 1994 sample was good and Williamson was the man responsible for the 2002 attack, Detective Tracy Morgan of the county's Sex Offense Unit arrested him on an old warrant and arranged for him to eat a free McDonald's meal in a holding cell. When he finished his dinner and left the room, she recovered his trash and sent his used cup to a lab for DNA testing.

The DNA matched, leading police to charge Williamson in the rape and prosecutors to secure a conviction.

"He is a violent sexual predator. He is a wolf in sheep's clothing," Circuit Court Judge Paul A. Hackner said before sentencing Williamson to two consecutive life sentences. "Mr. Williamson should never walk in public for the rest of his life."

It's legal to lie

Tricks, ruses and other forms of subterfuge are common police tactics and generally legal, attorneys and other legal observers said.

They stress police are allowed to lie as long as they don't violate a suspect's rights to remain silent and speak to an attorney, and that detectives don't need a warrant to conduct "trash rips" - operations in which they seize a suspect's trash from outside his home.

"This is long-standing legal precedent," said Jennifer Alexander, a former prosecutor in Anne Arundel County who now works as a defense attorney. She and several other defense attorneys contacted by The Capital said the majority opinion was not unexpected.

Battaglia noted the FBI can even order an inmate to get a haircut and then legally seize the clippings.

"Fourth Amendment protection does not extend to property that is abandoned or voluntarily discarded, because any expectation of privacy in the item searched is discarded upon abandonment," she said.

Using that same logic, Battaglia said police were allowed to seize and test the McDonald's cup.

In the dissenting opinion, Bell agreed police could legally seize the cup without a warrant, but argued they needed a warrant to test it for DNA. He said the abandonment argument was too "simplistic."

"Williamson possessed a reasonable expectation of privacy in his DNA," Bell said.

He noted that under current state law, only people convicted of felonies and burglaries are required to submit DNA samples to police databases. But if the majority opinion is correct, there is no need for such statutes or limitations, he said.

"The state could do as it did here: supply the cup, and instead of disposing of it, analyze the DNA on it. A lot of constitutional questions and litigation could thereby be avoided," Bell said.

For Weathersbee, that doesn't sound so bad.

"Obtaining DNA any way we can is a good thing," he said, pushing for new laws requiring anyone arrested of a crime to have to give police a DNA sample, just as they must give police their fingerprints.

"The more DNA we have, the better off we are," he said.

But for Davis, it's "scary."

"This is not just a law enforcement issue, it is a government issue," he said. "They can collect your DNA and store it for whatever (they want)."

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