Steve Lash, The Daily Record Newswire
A convicted rapist is urging the U.S. Supreme Court to reverse his conviction and 100-year prison sentence, saying the Maryland State Police violated his constitutional rights when they surreptitiously checked the DNA in the perspiration he left on a chair while voluntarily answering questions at an MSP barracks.
The DNA linked Glenn J. Raynor to the violent crime.
In papers filed Tuesday at the Supreme Court, Raynor argues through counsel that gathering and testing his perspiration, without his consent or a warrant, violated his Fourth Amendment right against unreasonable searches. He wants the Supreme Court to overturn a decision by Maryland’s top court, which held in August that the DNA test was merely a method of gathering identifying information, much like collecting a fingerprint.
If permitted to stand, the Maryland Court of Appeals’ 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,” Byron L. Warnken, Raynor’s lead attorney, stated in a brief to the justices. “Rejecting a reasonable expectation of privacy in free citizens’ DNA will fundamentally alter the relationship between law enforcement and the general citizenry.”
Maryland Attorney General Brian E. Frosh will have about 30 days to respond to Warnken’s petition for Supreme Court review. The high court has not stated when it will consider the request.
Frosh did not respond to telephone messages seeking comment Wednesday on Warnken’s petition.
Free citizen’s expectations
The case now at the Supreme Court is reminiscent of the justices’ June 3, 2013, decision in Maryland v. King, in which they upheld, by a 5-4 vote, a Maryland law that permits police, without a warrant, to swab for DNA the inside cheeks of people arrested on charges of a violent crime.
But unlike Alonzo Jay King Jr., Raynor had not been arrested when his perspiration was collected, Warnken stated in his petition.
“In King, the defendant’s expectation of privacy was diminished due to his arrest for a serious offense because he should expect a ‘relatively extensive exploration’ of his person and property when brought into the police station,” Warnken wrote, quoting from the Supreme Court’s decision.
By contrast, Raynor was “a free citizen” subjected to “surreptitious analysis of involuntarily shed DNA,” added Warnken, a University of Baltimore School of Law professor and founder of the law firm Warnken LLC in Pikesville
The Maryland State Police’s investigation of the April 2006 rape was into its third year when the victim suggested Raynor as the possible perpetrator, according to court documents. The victim and Raynor had gone to school together, knew the same people and he had at one time lived in the house where she was later raped, the victim told police.
The MSP asked Raynor to come to state police barracks and answer questions in July 2008, which he did. After Raynor left, a trooper swabbed the chair where Raynor had sat and sent the swabs to the forensics division.
A test revealed a match for DNA found on the victim’s pillowcase and patio.
In June 2009, Raynor was convicted in Harford County Circuit Court of first-degree rape and related charges.
“In the end, we hold that DNA testing [of] genetic material not obtained by means of physical intrusion into the person’s body is no more a search for purposes of the Fourth Amendment than is the testing of fingerprints or the observation of any other identifying feature revealed to the public — visage, apparent age, body type, skin color,” Chief Judge Mary Ellen Barbera wrote for the majority.
In dissent, Judge Sally D. Adkins wrote that “the result of the majority opinion is that, short of searching a person via touch or entering her home, the state may collect any person’s DNA, create a genetic profile, and add it to the [law enforcement] database, all without implicating, let alone respecting, any constitutional protection.”
