Prof. Byron Warnken asks Supreme Court to hear DNA case

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University of Baltimore School of Law Professor Byron L. Warnken has filed a request with the United States Supreme Court, seeking a hearing in hopes of overturning the criminal conviction of a client whose constitutional rights were violated, Warnken claims, when Maryland State Police collected the man’s DNA without a warrant when he had not been arrested or charged with a crime.

Warnken is acting as lead attorney for Glenn J. Raynor, who is serving a 100-year sentence for a 2006 rape. In 2008, while Maryland State Police were continuing their investigation into the rape, the victim suggested that Raynor, an acquaintance, could be the perpetrator. Raynor, who was not under arrest at the time, agreed to be interviewed at the police barracks. After he left, officers — who did not have a warrant — collected Raynor’s DNA from perspiration he left on a chair. The DNA sample proved a match with DNA found 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 makeup of a free citizen — not incarcerated, not under arrest, not on probation, not on parole.”

Raynor’s appeal, which follows an August 2014 decision by the Maryland Court of Appeals, may hinge on whether the Supreme Court views DNA as similar to or exactly like fingerprints. The Court of Appeals, Maryland’s highest court, asserted that collecting DNA without a physical intrusion into the body, like testing for fingerprints or observing a person’s other identifying features, does not constitute a violation of the Fourth Amendment right against unreasonable searches.

By way of comparison, Warnken raises the issue of privacy when it comes to a person’s mobile device.

“The Supreme Court held … 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 of the unanimous decision. “If the Supreme Court denies certiorari in [the Raynor case], a validly arrested person will have a greater expectation of privacy in his cell phone than a free citizen has in his DNA.”

In his brief, 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.”

Said Warnken: “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 Professor Warnken.

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