The case of a 14-year-old Prince George's County boy, linked to a sexual assault after police stopped him on a street corner and swabbed him for DNA, could break legal ground on when and how police secure such evidence from juvenile offenders, legal experts said.
Dominick L. Edelen, the Temple Hills boy being charged as an adult, was indicted last week on one count of sexual assault in connection with a March 29 incident involving a 13-year-old girl. Edelen was arrested April 21 and is being held without bond at the Prince George's jail.
Edelen's attorney, Richard Finci, has now filed a motion to throw out the DNA evidence and dismiss the indictment, saying his client did not give "knowing and voluntary consent" to the taking of the DNA sample.
Police officers, he said, lied about why they wanted the sample and left the impression that the boy's father had given his consent. The teenager signed a consent form only after giving a sample, his father said. Prince George's police would not discuss the case, but court records indicate that the officer had no search warrant to take the sample and that Edelen was not under arrest.
Damage to prosecution's case
The case in the county Circuit Court pits police, who rely increasingly on DNA to solve cases, against defense attorneys and civil liberties advocates who say courts need to establish better guidelines on how such evidence is secured from those younger than 18.
Some legal experts questioned the conduct of Prince George's police and said it could damage the prosecution's case. If Edelen is convicted, he could have grounds for an appeal that could help establish law where the courts have remained vague, they said.
"What you have in this case is a warrantless search of a child's mouth," said Steve Benjamin, an adjunct professor at the University of Richmond School of Law. Police, he said, could easily have obtained a warrant or found another way to secure the sample.
"All they would have had to do was follow the kid until he blew his nose on a tissue and dropped it or dropped a soda can, and they could have the DNA," Benjamin said. "This is stupid, unimaginative and lazy police work that may have jeopardized a very strong case."
Edelen, an eighth-grader at G. Gardner Shugart Middle School, told his parents and attorney that he was walking home from a friend's home April 4 when he was approached by a detective.
The detective, Edelen said, told him he was investigating a robbery at a Wendy's restaurant and wanted to rule the teenager out as a suspect. The detective took Edelen's cellphone and scrolled down to the number for his father, then called, saying he wanted to confirm the youth's identity.
John Edelen said he identified his son in a short conversation with the officer, but the subject of DNA never came up. After the officer hung up, he took out a cotton swab and asked Edelen to open his mouth, the teenager told his parents.
Afterward, the officer pulled out a form and asked the youth to sign it. Edelen told his father that although he could not see what it said, he signed it because he did not want to disobey the officer.
"They claim he consented," Finci said. "I can only tell you from my gut reaction that consent has to be knowing and voluntary to be valid. . . . And how can you have knowing and voluntary consent when the officer tells you they are investigating an armed robbery?"
Varied laws
County Public Safety Director Vernon Herron said that the law permits DNA samples to be taken on the street and that some police officers carry swab kits in their patrol cars. The fact that Edelen opened his mouth constituted consent, Herron said.
Laws in many states, including Maryland, allow police to take DNA samples from juvenile suspects with nothing more than verbal consent, a practice some defense attorneys say violates young suspects' rights.
Although parental consent is required before children can receive medical treatment and in some cases before they can be questioned in school, police are allowed to interview, search, photograph, fingerprint and take DNA samples with nothing more than a nod, authorities said.
Unlike the Miranda warning, which advises crime suspects that whatever they say may be used against them, no such warning is required before DNA is taken.
"Maryland has no protocol for telling you anything when asking for DNA," said Matt Campbell, a former Montgomery County prosecutor. Campbell said the courts have been loath to place restrictions that could complicate police investigations. "The line has been moved to allow a wide range of police conduct," he said.
Campbell said police might have taken the sample to establish "a greater degree of certainty" before charging the boy with such a serious offense. Edelen could face life in prison if convicted.
Some officers admit their discomfort with taking DNA from young suspects.
"As a father, it concerns me that someone could approach my son and ask him for a sample of his DNA and then take it without me knowing," said a longtime Prince George's police official who spoke on condition of anonymity because the department is not allowing officers to discuss the case.
"But as a law enforcement officer, I know that our hands would be tied if every time we needed to get a DNA sample from a suspect we had to contact a parent and wait for them to arrive. It would take forever and, meanwhile, some of these very bad little criminals would still be running around on the street."
Question of deception
In Edelen's case, the Prince George's police laboratory compared the DNA sample to semen found on the clothing of the 13-year-old girl and found a match, according to charging documents.
Also at issue is whether police were truthful about why they needed the sample. By law, officers are allowed to use deception when interviewing suspects. But there is disagreement among legal experts as to whether they can lie to obtain physical evidence.
"They are required, under consent law, to say what they want the DNA for," said Laura Martin, an attorney with the Maryland Crime Victims' Resource Center in Upper Marlboro. "If police want to get consent to search a car, you have to say what you are looking for because it affects the search. If you are looking for grenade launchers, you can't look in the glove box."
Some experts said taking a DNA sample of the boy under false pretenses and without telling his father could result in the evidence being thrown out by a judge.
"There is no excuse for the officer not being honest with the child's parent," Benjamin said. "When officers choose to cheat and lie, the public suffers because then what could have been a perfectly strong case crumbles."