Brief for Professor Albert E. Scherr as Amicus Curiae in Support of Petitioner

INTRODUCTION AND SUMMARY OF ARGUMENT Professor Scherr agrees with petitioner that review is warranted because the Maryland Court of Appeals decision is erroneous. The Fourth Amendment does not sanction police harvesting of DNA without probable cause and a warrant and without the subject’s knowledge or consent, to be used however the authorities deem appropriate and without restriction. The Maryland Court of Appeals’ decision is contrary to the Supreme Court’s jurisprudence as articulated in the Riley v. California – Maryland v. King – United States v. Jones trilogy. This case fits squarely in the center of the triangle formed by that trilogy. The petition should be accepted to remedy this conflict at the intersection of this Court’s jurisprudence on the newest forensic technology and the Fourth Amendment. Professor Scherr also agrees with the petitioner that this Court should accept this petition to resolve a conflict between a Federal Court of Appeals and a state court of appeals. In United States v. Davis, 690 F.3d 226 (4th Cir. 2012), the Fourth Circuit found that the police implicated the suspect’s Fourth Amendment privacy interest when it sought to obtain a DNA profile from his blood found on clothing it held legally. In this case the Maryland Court of Appeals found the opposite. As surreptitious harvesting cases continue to enter the criminal justice system, it is an opportune time for this Court to resolve this conflict and offer guidance to state and federal courts