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Prof. Warnken Argues DNA 'Case of First Impression'

Byron Warnken has been a law professor at the University of Baltimore School of Law for 37 years. He’s also a lawyer who argues appeals – 250 in his career so far. Warnken says his favorite appeal was the 1996 Supreme Court case Maryland v. Wilson, in which the court appointed him to argue against U.S. Attorney General Janet Reno and Maryland Attorney General J. Joseph Curran. The legal issue was whether the Fourth Amendment permitted police to require every passenger to exit a validly stopped vehicle.

This month, Professor Warnken argued what he calls the second-favorite appeal of his career, Raynor v. State. The legal issue at stake is whether free citizens have a Fourth Amendment reasonable expectation of privacy in their genetic material.

Raynor is a case of first impression, or a legal case in which there is no binding authority on the matter in dispute.

The matter involves a two-year-old rape case. After 22 suspects were eliminated, the victim thought of Glenn Joseph Raynor. When Raynor told police he had nothing to do with a rape, they told him to give them a DNA sample. He stated he would do so if they could assure him his DNA would not go into a database. When police told him his DNA would go into a database, he refused to give a sample. Police then asked to talk with Raynor, who complied. After the conversation, as soon as Raynor left the police barracks, police swabbed the chair where he had been seated, obtained a DNA sample, analyzed it without a warrant and made a match. Raynor was convicted in the rape.

The evidentiary issue at trial and on appeal was whether police had violated Raynor’s right to be free from unreasonable searches and seizures. Both the trial court and the intermediate appellate court held that he had no reasonable expectation of privacy in his genetic material, which he abandoned by leaving it in a police chair in a police barracks. Warnken asked Maryland’s highest court, the Court of Appeals, to take the case. The court, which accepts about one case in eight, agreed to hear it.

Warnken urged the court to hold that Raynor had a reasonable expectation of privacy in his genetic material and asked the court to apply Kyllo v. United States, a 2001 Supreme Court case. In it, a Department of the Interior agent suspected Danny Lee Kyllo of growing marijuana in his Oregon home and aimed a sophisticated heat-sensing device into his residence from outside. (Indoor marijuana growers use high-intensity lamps, which emit heat.) Based on the results--which showed that parts of Kyllo’s home were relatively hot compared to the rest of his home and much warmer than the neighboring units--police obtained a search warrant for the home.

The Supreme Court ruled in favor of Kyllo because police entered his home without a warrant. Although he had no reasonable expectation of privacy regarding the heat emitted from his home, Kyllo did have a reasonable expectation of privacy in every detail of his home, including what police learned from the device that they “shot” into the dwelling, the court said. Similarly, even if Raynor had no reasonable expectation of privacy in the cells he left on the chair, Warnken argued that Raynor did have a reasonable expectation of privacy in the intimate information that could be gleaned by testing his genetic material.

Warnken argued that, even if police could surreptitiously take Raynor’s sweat from their chair, they could not subject it to DNA analysis without a warrant issued by a neutral and detached judicial officer, and then only if there was probable cause to believe fruits, evidence or instrumentalities of a crime would be found in his DNA.

The state argued that Raynor abandoned his DNA. Warnken countered that the court had held, in two previous cases, that abandonment requires a volitional, intentional act and that Raynor’s automatic and involuntary shedding of skin cells was not a volitional act.

The state also argued that DNA was just like fingerprints and that there is no reasonable expectation of privacy in fingerprints. Warnken noted that neither the Supreme Court nor Maryland courts had ever ruled on whether there is a reasonable expectation of privacy in fingerprints. Moreover, he argued that society is significantly more willing to recognize a reasonable expectation of privacy in the intimate details of one’s genetic makeup than in one’s fingerprints.

The state argued that, even if there is a reasonable expectation of privacy in DNA, making the Fourth Amendment applicable, the state could validly cross that line in this case because police had reasonable articulable suspicion of criminal activity. The state argued reasonable suspicion based on a combination of factors: 1) Raynor and the victim lived in same house many years apart; 2) Raynor and the victim attended the same school many years apart; 3) Raynor was married and the victim’s assailant wore a wedding ring; 4) Raynor fit the assailant’s general description; and 5) Raynor had a metallic smell and the assailant had a metallic smell.

Warnken argued that these five factors create no more than a hunch and do not create reasonable articulable suspicion of criminal activity. Moreover, Warnken argued that reasonable suspicion is constitutionally inadequate because police must have probable cause and a warrant.

The state also argued that, even if Raynor prevailed on the merits of the case, the evidence was admissible nonetheless.The state said the rule that excludes unconstitutionally obtained evidence does not apply when police have a good-faith belief in the constitutionality of their conduct. Warnken argued the court had filed an opinion in 2013 that made clear that the police are not excused from unconstitutional conduct when the law is uncertain and there is no case expressly forbidding their unconstitutional conduct. Instead, the standard is that police conduct is excused only when there was case authority expressly authorizing such police conduct and the court later changed its position regarding that authorization.

The Court of Appeals will release a published opinion resolving this appeal no later than Aug. 31, 2014.