Law Professor Asks Supreme Court to Hear DNA Case
February 3, 2015
Contact: University Relations
University of Baltimore School of Law Associate Professor Byron L. Warnken has filed a request with the United States Supreme Court, seeking a hearing in hopes of overturning a criminal conviction against a client whose constitutional rights were violated, Warnken claims, through the use of so-called "sweat-test" evidence—DNA collected surreptitiously by police prior to the person's arrest.
Through his private law firm, Warnken is acting as lead attorney for Glenn J. Raynor, who is serving a 100-year sentence for a 2006 rape. In 2008, Maryland State Police were continuing their investigation of the case when the victim suggested that Raynor, an acquaintance of the victim, could be the perpetrator. The police asked him to be interviewed at their headquarters and he voluntarily did so. After Raynor left—without being arrested—officers collected his DNA from perspiration he left on a chair. The DNA sample proved a match with DNA at the crime scene. Raynor was convicted in Harford County Circuit Court of first-degree rape and related charges.
"This is one of the most 'cert worthy' issues in recent years," Warnken said. "DNA seems to be at the heart of all criminal investigations. Every police officer, every prosecutor, every criminal defense attorney and every judge needs to know the relationship between DNA and the U.S. Constitution.
"There is a split among the jurisdictions on whether there is a reasonable expectation of privacy against DNA testing and, thus, requiring a search and seizure warrant to analyze the highly private genetic make-up of a free citizen—not incarcerated, not under arrest, not on probation, not on parole."
Raynor's appeal, which follows a decision against him by the Maryland Court of Appeals last August, may hinge on whether the Supreme Court views DNA as similar or exactly like fingerprints. The Court of Appeals (Maryland's highest court) asserted that collecting DNA and testing for fingerprints or observing other identifying features are the same, and police have relatively wide discretion in investigating via all of those means.
But, Warnken says, if that is the case, where is the line between DNA and a person's mobile device?
"The Supreme Court held this year, 9-0, that even if the police validly seize a cell phone during an arrest, they may not go into that cell phone without a warrant because people have their entire lives in their phones," Warnken said. "If the Supreme Court denies certiorari in this case, a validly arrested person will have a greater expectation of privacy in his cell phone than a free citizen has in his DNA."
The Supreme Court is expected to announce whether it will grant Raynor a hearing in the coming days.
In his brief asking for cert, Warnken said that if the state court's ruling is allowed to stand, the decision would "permit technology to erase society's sense of personal security, forcing ordinary citizens to relinquish their expectation of privacy in their DNA when they enter a public place or identify themselves to the government.
"Rejecting a reasonable expectation of privacy in free citizens' DNA will fundamentally alter the relationship between law enforcement and the general citizenry."
Read The Daily Record article about the case.
Learn more about Prof. Warnken.
The University of Baltimore is a member of the University System of Maryland and comprises the College of Public Affairs, the Merrick School of Business, the UB School of Law and the Yale Gordon College of Arts and Sciences.