Maryland’s second highest court has upheld the conviction of a Glen Burnie man who was charged with a burglary based on a DNA sample he gave in an unrelated case.
George Varriale, 47, appealed his conviction to the Maryland Court of Special Appeals, saying investigators exceeded the bounds of his consent by retaining and using his DNA after he was cleared of suspicion in an unrelated investigation. In a ruling last week, the court said the state had no obligation to obtain a warrant before reexamining the DNA sample it had lawfully obtained. On July 10, 2012, Anne Arundel County police were investigating a rape when they encountered Varriale in a tent in a wooded area behind a liquor store on Crain Highway in Glen Burnie. Varriale consented to giving a DNA sample and was cleared as a suspect in the rape five months later. A detective did, however, submit Varriale’s DNA profile into a suspect index of the county and state DNA databanks. A few days later, a police forensic DNA analyst matched Varriale’s DNA profile to the DNA found on a Coke can found at the scene of a Glen Burnie burglary in 2008. Varriale was charged with the burglary based on the DNA evidence and his motion to suppress the evidence was denied in Circuit Court. He was convicted of second-degree burglary and sentenced to four years in prison, though he was given credit for time served and the rest of the sentence was suspended.
Varriale contended the scope of his consent to give a DNA sample was limited to the police investigation into the alleged rape. His attorney made the same arguments to the Court of Special Appeals. Maryland’s DNA Collection Act provides that any DNA samples and records generated as part of a criminal investigation or prosecution shall be destroyed or expunged from the state DNA database if a criminal action began against an individual relating to the crime does not result in a conviction. The problem for Varriale was that he was never charged with the alleged rape, so police never officially began a criminal action against him. “While it may seem anomalous that a volunteer like Varriale would have fewer statutory protections than someone who had been charged with or even convicted of a serious criminal offense, the anomaly is a result of the history and structure of the DNA Collection Act itself,” the Court of Special Appeals wrote in its decision. When it was enacted in 1994, the Act authorized the collection, retention and, in some cases, expungement of DNA only from persons who had been convicted of felonies or other enumerated crimes. The General Assembly amended the Act in 2008 to extend its provisions to persons who had been charged with a crime of violence, an attempt to commit a crime of violence, burglary or an attempt to commit a burglary.
But the General Assembly has yet to expend the expungement provisions to persons like Varriale, who voluntarily consent to the taking of a DNA sample. Lawmakers in 2013 considered, but failed to pass, a bill that would have prohibited a governmental unit from storing DNA samples from persons who voluntarily gave a sample. Varriale argued to the Court of Speical Appeals that citizens might be deterred from cooperating with police if the state can upload, store and analyze their DNA samples in perpetuity. “We think that these arguments, as sensible as they are, are better directed to the General Assembly,” the Court of Special Appeals wrote.
Tim Pratt, Capital Gazette