Raynor v. State , 440 Md. 71 ( 2014 )

Glenn Joseph Raynor v. State of Maryland, No. 69, September Term 2012
CRIMINAL PROCEDURE — SEARCH AND SEIZURE — REASONABLE
EXPECTATION OF PRIVACY — DNA TESTING — The test for ascertaining whether
a particular form of conduct is a search for purposes of the Fourth Amendment consists of
two parts, each of which must be satisfied in order for the Fourth Amendment to apply: (1)
a defendant must demonstrate an actual, subjective expectation of privacy in the item or place
searched and (2) prove that the expectation is one that society is prepared to recognize as
objectively reasonable. The DNA testing of the 13 identifying “junk” loci within one’s
genetic material, not obtained by means of a physical intrusion into the person’s body, does
not constitute a Fourth Amendment search.
Circuit Court for Harford County
Case No. 12-K-08-001527
Argued: April 8, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 69
September Term, 2012
GLENN JOSEPH RAYNOR
v.
STATE OF MARYLAND
Barbera, C.J.,
Harrell
Battaglia
Greene
Adkins
McDonald
McAuliffe, John F. (Retired, Specially
Assigned),
JJ.
Opinion by Barbera, C.J.
Harrell, Greene, and Adkins, J.J., dissent
Filed: August 27, 2014
This appeal has its genesis in the commission of a rape in 2006. More than two years
later, the victim of the rape contacted the police and explained that she suspected that
Petitioner, Glenn Joseph Raynor, had been the perpetrator. Shortly thereafter, Petitioner
agreed to the request of the police to come to the police station for an interview. At some
point during the interview, the police requested Petitioner’s consent to the taking of a DNA
sample for comparison to DNA evidence collected at the scene of the rape. He declined.
Minutes after the interview concluded and Petitioner had departed the station, the police, who
had noticed Petitioner rubbing his bare arms against the armrests of the chair in which he had
been seated, took swabs of the armrests in an attempt to collect his DNA. The police
submitted those swabs to the crime lab for DNA analysis, which revealed that the DNA
extracted from the swabs matched DNA samples investigators had collected from the scene
of the rape.
Further investigation ensued and, eventually, Petitioner was charged with first-degree
rape and related offenses. He filed a pre-trial motion seeking suppression of the DNA
evidence and all evidence derived therefrom, arguing that the warrantless collection and
testing of cellular material that he shed during his interview at the police station violated his
right under the Fourth Amendment to be free from unreasonable searches and seizures. The
suppression court denied the motion, having concluded that Petitioner had no reasonable
expectation of privacy in the DNA evidence left on the chair. The Court of Special Appeals
agreed with that ruling.
Petitioner no longer disputes, as he did before the suppression court, that the police
lawfully obtained his DNA from the armrests of the chair in the station, and we assume,
solely for purposes of our present analysis, that the police were not required to have a warrant
or individualized suspicion of Petitioner’s commission of the rape before collecting those
DNA samples. Accordingly, the only legal question before us is whether analysis by the
police of the 13 identifying “junk” loci contained within Petitioner’s DNA was a search for
purposes of the Fourth Amendment. For reasons we shall explain, we hold that the DNA
testing at issue in the present case was not a search under the Fourth Amendment.
I.
The rape occurred in Bel Air, Harford County, Maryland during the early morning
hours of April 2, 2006. The facts material to its commission and the police investigation that
followed are undisputed. At approximately 5:00 a.m., the perpetrator broke into the home
of the victim1 through a patio door that led to the basement. Shortly thereafter, the
perpetrator entered the victim’s bedroom, raped her repeatedly, and fled the scene. The
victim did not see her attacker’s face because, upon entering the bedroom, he pressed a
pillow against her face and blindfolded her with his t-shirt. The victim noticed, however, that
her attacker was Caucasian, had a medium build, and emanated a “metallic scent.”
After the perpetrator fled, the victim ran to her neighbor’s home, where she reported
the rape to the police. Investigators responded to the victim’s home and a crime scene
technician processed it for evidence. The technician collected material possibly containing
1
We do not use the victim’s name or initials in an effort to protect her privacy.
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DNA, including blood from a pillow found in the victim’s bedroom and the area near the
door through which the perpetrator had entered. Meanwhile, a police officer accompanied
the victim to the hospital where she underwent a rape examination, during which a nurse took
vaginal and anal swabs.
The victim contacted the police on numerous occasions throughout the next two years
to inform them about potential suspects. During that time, the police obtained consensual
DNA samples from approximately 20 individuals with possible connections to the 2006 rape,
including several of the victim’s neighbors. None of those DNA samples matched the DNA
collected from the victim’s home on the day of the rape.
In July 2008, the victim contacted the lead investigator assigned to the case, Trooper
First Class Dana Wenger, to report her suspicion that Petitioner was the rapist. The victim
explained that she and Petitioner had gone to school together, he was the previous owner of
the home in which the rape occurred, and his body type matched that of the man who raped
her. Approximately two weeks later, Trooper Wenger left a note at Petitioner’s home asking
him to contact her. A few days later, Petitioner called the trooper and agreed to come to the
station later that day to answer questions related to the rape investigation.
Upon Petitioner’s arrival at the station, Trooper Wenger escorted him to a vacant
office and directed him to have a seat. Shortly thereafter, Sergeant James DeCourcey entered
the room and a 30-minute interview ensued. The officers noted during the interview that
Petitioner, who was wearing a short-sleeved shirt, repeatedly rubbed his bare arms against
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the armrests of his chair, and his body carried a metallic odor similar to the odor the victim
had described smelling during the rape.
At some point during the interview, Trooper Wenger asked Petitioner for his consent
to the taking of a DNA swab of his mouth. Petitioner responded that he would consent only
if the police agreed to destroy the DNA sample after they concluded their investigation of the
rape. When the police declined to give that assurance, Petitioner refused to provide a DNA
sample, and the interview concluded.
Minutes after Trooper Wenger escorted Petitioner out of the station, Sergeant
DeCourcey took swabs of the armrests of the chair in which Petitioner had sat during the
interview, sealed those swabs in an envelope, and placed them in an evidence locker. Two
days later, Trooper Wenger submitted the swabs to the Maryland State Police Forensic
Sciences Division laboratory for DNA analysis. The analysis revealed that the DNA
extracted from the swabs of the armrests matched the DNA extracted from blood collected
at the scene of the rape.
Trooper Wenger relied upon the results of the lab’s DNA analysis, as well as other
evidence the police had gathered during their investigation, in applying for and obtaining
warrants to arrest Petitioner, collect an additional DNA sample, and search his home. After
arresting Petitioner, the police transported him to the station, interviewed him, and, at some
point, took a DNA sample via a buccal swab. That DNA sample, like the DNA samples
collected from the chair in the police station, matched DNA collected from the victim’s home
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on the day of the rape. A second DNA analysis of the buccal swab revealed a match to DNA
extracted from the vaginal and anal swabs obtained during the victim’s rape examination.
The State charged Petitioner with several counts of rape, assault, burglary, and related
crimes. He was tried before a jury, which heard the results of the DNA analyses and other
evidence linking him to the crimes. The jury found Petitioner guilty of two counts of rape
and related crimes, for which the court sentenced him to a total of 100 years’ imprisonment.
The Suppression Hearing
Petitioner filed a pre-trial motion to suppress the DNA evidence the police obtained
from the chair in the police station, and the fruits derived therefrom.2 He argued that the
police violated his right under the Fourth Amendment to be free from unreasonable searches
and seizures, by seizing his genetic material3 from the armrests of the chair and then
searching that material for the 13 loci on the DNA strand that allowed the police to connect
him to the rape. He claimed in the alternative that, even if the police officer’s obtaining his
genetic material by swabbing the chair was not an unlawful seizure for purposes of the
Fourth Amendment, the police nonetheless conducted a separate search that violated the
2
Petitioner asserted that the warrants to arrest him, collect an additional DNA sample,
and search his home were predicated upon the DNA evidence obtained from the armrests of
the chair in the police station. He thus sought suppression of any statements he made to
police after his arrest, the DNA sample police took after his arrest, and any evidence
recovered from his home pursuant to the search warrant.
3
Petitioner uses this phrase to describe the perspiration and/or skin cells he shed onto
the armrests of the chair during his interview in the police station. For the purposes of our
discussion, we shall adopt, in certain places, the term “genetic material.”
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Fourth Amendment when they performed a DNA analysis of the material.4
The suppression court denied the motion, reasoning in pertinent part:
[D]oes [the] Fourth Amendment apply at all in this case? . . . This is a
very simple matter as I see it. Does he have a reasonable expectation of
privacy that society is prepared to recognize of what’s left [on] a chair when
he gets up and leaves? The answer to that as far as I am concerned is no, he
has no such expectation of privacy. He is in a public building. . . . Yes, he
refused [to submit voluntarily a DNA sample], there is no doubt about that.
He refused to give consent. So when he refuses to give consent, does that
mean that if the police can get [a DNA sample] some other way, they can’t use
it? Of course not.
***
So I think that the seizure of the sample did not violate the Fourth
Amendment at all because I don’t think the Fourth Amendment applies in this
situation because I don’t think he had any reasonable expectation of privacy
with regard to the [genetic material] he left on the chair.
***
I don’t think DNA is any different in terms of leaving it anywhere than
a fingerprint [or] than if he walks out of the [police station] and somebody
takes his photograph. He is sitting in there and [the police] ask can we take a
picture of you . . . to have other people look at it. He says no . . . . So [he]
walks outside the [station], is standing on the sidewalk, and they take his
picture. He is in a public place. When he goes in there, does he have any
expectation that anything he leaves that he is going to continue to have a
privacy right in it? I don’t think so. And because I don’t think so, because I
don’t think the Fourth Amendment applies at all, because I don’t think he had
any reasonable expectation [of privacy] . . . that society is prepared to
recognize as reasonable, then the same logic applies because the use of [the
DNA evidence] to obtain the search warrants also is perfectly legitimate.
***
4
In support of that argument, Petitioner relied upon the so-called “container cases.”
E.g., United States v. Chadwick, 433 U.S. 1 (1977). He reasoned that the genetic material
he deposited on the chair was a closed “container” with no independent value to the police
and that, to “open” the container to reveal its contents, namely Petitioner’s DNA, the police
were required to obtain a warrant. The suppression court rejected that theory and, as we shall
see, Petitioner does not rely upon that argument on appeal.
-6-
So the Motion to Suppress is going to be denied . . . .
The Appeal
On appeal to the Court of Special Appeals, Petitioner contended that, in the absence
of a proper warrant, the police were prohibited from “analyzing the swab they took from the
chair, developing a DNA profile, and comparing it to the DNA recovered from the crime
scene.” Raynor v. State, 201 Md. App. 209, 217 (2011). The Court of Special Appeals held
that the Fourth Amendment did not apply to the testing of the genetic material Petitioner left
on the chair, reasoning that Petitioner’s DNA profile was used for identification purposes
only and he had “no objectively reasonable expectation of privacy in the identifying
characteristics that could be gleaned from the normal biological residue he left behind.” Id.
at 225. The court relied upon certain similarities between DNA evidence and fingerprints:
“[L]ike the analysis of a latent fingerprint, which involves no physical intrusion into the body
and is used for identification purposes only, the analysis in the instant case of DNA evidence
. . . was not a constitutionally protected search.” Id. at 222.
We granted Petitioner’s petition for a writ of certiorari to consider the following
questions posed by Petitioner:5
5
In November 2012, after having granted certiorari, we stayed the present appeal
pending resolution by the Supreme Court of the United States of Maryland v. King, 133 S.
Ct. 1958 (2013). We lifted the stay in August 2013, shortly after the Supreme Court issued
its opinion in King.
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1. Whether, under the Fourth Amendment . . . ,[6] a free citizen maintains an
objectively reasonable expectation of privacy in the DNA found in genetic
material involuntarily and unknowingly deposited through ordinary biological
processes?
2. Whether, under the Fourth Amendment . . . , the determination of an
individual’s expectation of privacy requires consideration of the privacy
interest in the information obtained, and not just the privacy interest in the
place in which it was found?
We also granted the State’s conditional cross-petition, which asks, assuming the Fourth
Amendment applies, whether the testing of Petitioner’s genetic material constituted a limited
intrusion justified by reasonable suspicion that he had committed the rape and, if not,
whether the police conduct in this case compels application of the Fourth Amendment
exclusionary rule. Given our disposition of the case on the basis of the threshold questions
presented by Petitioner, we need not, and therefore do not, reach the questions the State
presents in its conditional cross-petition.
II.
In reviewing the denial of a motion to suppress evidence, as we do here, “we must rely
solely upon the record developed at the suppression hearing.” See Briscoe v. State, 422 Md.
384, 396 (2011). “We view the evidence and inferences that may be drawn therefrom in the
light most favorable to the party who prevails on the motion,” id., here, the State. We accept
6
Petitioner argued in his petition for writ of certiorari that Article 26 of the Maryland
Declaration of Rights provides an independent basis for reversal of the judgment of the Court
of Special Appeals. Yet, in his briefs to this Court, Petitioner explains that he does “not
endeavor[] to address Article 26 as an independent basis for reversal.”
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the suppression court’s factual findings unless they are shown to be clearly erroneous. Id.
We, however, make our own independent constitutional appraisal of the suppression court’s
ruling, by applying the law to the facts found by that court. Id.
None of the evidence pertinent to the legal issue raised in the present appeal is
disputed and the suppression court’s ruling reflects its having credited the testimony of
Trooper Wenger and Sergeant DeCourcey. We therefore accept the officers’ testimony
related to the collection and testing of Petitioner’s genetic material as we analyze the parties’
legal arguments.
III.
We begin our discussion by clarifying what legal issue is not before us. In his briefs
to this Court, Petitioner argues, as he did before the suppression court, that the Fourth
Amendment required the police to obtain warrants authorizing both the collection of the
genetic material from the armrests of the chair and the DNA testing of that material. During
oral argument before us, however, Petitioner, through counsel, stated “for the sake of this
discussion, we would concede that, fine, . . . it was okay for [the police] to take the stuff off
of their chair.” Counsel further conceded that “it really does not matter that much whether
it gets analyzed as a one-step process or a two-step process” because “[t]he obvious real issue
in this case is the content of what [the police] got when they used their technology to analyze
[Petitioner’s DNA].” Given Petitioner’s concession that the police lawfully obtained his
genetic material from the armrests of the chair, the precise question for decision is whether
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law enforcement’s testing of the identifying loci within that DNA material for the purpose
of determining whether those loci match that of DNA left at a crime scene constitutes a
search under the Fourth Amendment.
The Fourth Amendment to the Constitution of the United States provides, in pertinent
part: “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . . .” Recently, in
Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court held “that using a buccal swab
on the inner tissues of a person’s cheek in order to obtain DNA samples is a search” for
purposes of the Fourth Amendment, reasoning that “[v]irtually any intrusio[n] into the human
body . . . will work an invasion of cherished personal security that is subject to constitutional
scrutiny.” Id. at 1968-69 (quotations and citations omitted). The Court did not decide
explicitly whether the testing of the 13 identifying loci the police later extracted from King’s
DNA sample required a separate Fourth Amendment analysis, and how, if at all, the analysis
would have differed had the police obtained King’s DNA absent a physical intrusion into his
body.
The case at bar implicates those questions left unanswered in King. For reasons we
shall explain, we hold that law enforcement’s analysis of the 13 identifying loci within
Petitioner’s DNA left behind on the chair at the police station, in order to determine a match
with the DNA the police collected from the scene of the rape, was not a search, as that term
is employed in Fourth Amendment parlance.
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IV.
It is bedrock constitutional law “that the rights accorded by the Fourth Amendment
‘are implicated only if the conduct of the [government] officials at issue . . . infringed an
expectation of privacy that society is prepared to consider reasonable.’” Walker v. State, 432
Md. 587, 605 (2013) (quoting O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality
opinion)). The test for ascertaining whether a particular form of conduct is a search for
purposes of the Fourth Amendment is often referred to as the Katz test, so named for Katz
v. United States, 389 U.S. 347 (1967), the case in which Justice Harlan’s much-quoted
concurrence described the test. See id. at 361 (Harlan, J., concurring). Justice Harlan’s
formulation remains the lodestar for determining whether police conduct is a search for
purposes of the Fourth Amendment. See, e.g., Kyllo v. United States, 533 U.S. 27, 33 (2001)
(“[A] Fourth Amendment search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.”).7
The Katz test consists of two parts, “each of which must be satisfied in order for the
Fourth Amendment to apply: (1) a defendant must ‘demonstrate an actual, subjective
7
We do not overlook United States v. Jones, 132 S. Ct. 945 (2012), in which the
Supreme Court resorted to a property-based approach to determine whether a Fourth
Amendment search had occurred. The Court’s reliance upon principles of trespass law in
Jones has not displaced the “reasonable expectation of privacy” test set forth in Katz. Indeed,
the Jones Court made clear that “we do not make trespass the exclusive test” and “where a
classic trespassory search is not involved . . . resort must be had to Katz analysis.” 132 S. Ct.
at 953-54; see also Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013) (stating that “[t]he Katz
reasonable-expectations test ‘has been added to . . .’ the traditional property-based
understanding of the Fourth Amendment”) (quoting Jones, 132 S. Ct. at 952).
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expectation of privacy in the item or place searched’ and (2) ‘prove that the expectation is
one that society is prepared to recognize as reasonable.’” Walker, 432 Md. at 605 (quoting
Corbin v. State, 428 Md. 488, 499 (2012)); see also Williamson v. State, 413 Md. 521, 534
(2010). “A person demonstrates a subjective expectation of privacy by showing that he or
she sought ‘to preserve something as private.’” Williamson, 413 Md. at 535 (quoting
McFarlin v. State, 409 Md. 391, 404 (2009)). An objectively reasonable expectation of
privacy, by contrast, has “‘a source outside of the Fourth Amendment, either by reference to
concepts of real or personal property law or to understandings that are recognized and
permitted by society,’ and constitutes ‘more than a subjective expectation of not being
discovered.’” Id. (quoting Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (1978)). “We have
no talisman that determines in all cases those privacy expectations that society is prepared
to accept as reasonable.” Ortega, 480 U.S. at 715. Nonetheless, common experience and
social norms bear upon our assessment of whether one has an objectively reasonable
expectation of privacy in a particular item or place. See California v. Greenwood, 486 U.S.
35, 51 n.3 (1988) (“Expectations of privacy are established by general social norms.”)
(citation omitted); 1 Wayne R. LaFave, Search and Seizure § 2.1(d), at 587 (5th ed. 2012)
(“[I]t is necessary to look to the customs and values of the past and present. . . . [,] the
structure of society, the patterns of interaction, [and] the web of norms and values.”)
(quotations and citations omitted).
Petitioner relies upon the Katz test to argue that the analysis of the identifying loci
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within his DNA implicated the protections of the Fourth Amendment. He first claims that
he demonstrated a subjective expectation of privacy in his DNA when, during the course of
his interview with Trooper Wenger and Sergeant DeCourcey, he declined to consent to the
taking of a DNA sample, thereby asserting a belief that “his genetic markers would not be
inspected.” The State accepts as much, and so do we.
Petitioner further claims, as he must for his argument to prevail, that his expectation
of privacy in his DNA, under these circumstances, was objectively reasonable. In making
that argument, he urges us to “focus . . . squarely on the ‘treasure map’ . . . of information
capable of being culled from” one’s DNA. He claims that, contrary to the conclusion of the
Court of Special Appeals, individuals have a “much greater” expectation of privacy in their
DNA than their fingerprints because DNA contains “a massive amount of deeply personal
information,” including “medical history, family history, disorders, behavioral characteristics,
and . . . propensity to . . . commit certain behaviors in the future.”
The State counters that Petitioner did not possess an objectively reasonable
expectation of privacy in the information the police analyzed because they tested only 13
junk loci, which, unlike other regions of the DNA strand, do not disclose the intimate genetic
information about which Petitioner expresses concern. Instead, those loci reveal only
information related to a person’s identity. In this regard, the State argues, law enforcement’s
testing of the DNA evidence in this case is indistinguishable from its testing of fingerprints
left unknowingly upon surfaces in public places, which does not implicate the protections of
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the Fourth Amendment.
We agree with the State. The Supreme Court has made clear that one’s identifying
physical characteristics are generally outside the protection of the Fourth Amendment. See
United States v. Dionisio, 410 U.S. 1, 14 (1973); see also State v. Athan, 158 P.3d 27, 37
(Wash. 2007) (en banc) (“Physical characteristics [that] are exposed to the public are not
subject to Fourth Amendment protection.”) (citing United States v. Mara, 410 U.S. 19, 21
(1973)). The analysis of such physical characteristics by law enforcement “involves none
of the probing into an individual’s private life and thoughts that marks” a Fourth Amendment
search. See Dionisio, 410 U.S. at 15 (citation omitted). Consequently, the character of the
information specifically sought and obtained from the DNA testing of Petitioner’s genetic
material—whether it revealed only identifying physical characteristics—is paramount in
assessing the objective reasonableness of his asserted privacy interest.
With the advent of DNA testing technology, law enforcement has a highly effective
means of identifying an individual as “unique” in the general population and thereby
identifying, or excluding, a criminal suspect as the actor in the commission of a crime. King,
133 S. Ct. at 1966 (noting the view among “law enforcement, the defense bar, and the courts”
of “DNA testing’s ‘unparalleled ability both to exonerate the wrongly convicted and to
identify the guilty’”) (quoting Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne,
557 U.S. 52, 55 (2009)). As described in King, “[t]he current standard for forensic DNA
testing relies on an analysis of the chromosomes located within the nucleus of all human
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cells. The DNA material in chromosomes is composed of ‘coding’ and ‘non-coding’
regions.” Id. at 1966-67 (quotations and citation omitted). Coding regions—otherwise
known as genes—“contain the information necessary for a cell to make proteins.” Id. at 1967
(citation omitted). Non-coding regions, which do not relate directly to the production of
proteins, are generally referred to as junk DNA; it is these regions of junk DNA that are
“used with near certainty to identify a person.” Id. Although highly useful for identification
purposes, junk DNA “does not show more far-reaching and complex characteristics like
genetic traits.” Id.; accord Williamson, 413 Md. at 543 (noting that the 13 junk loci consist
of stretches of DNA that “do not presently recognize traits” and “are not associated with any
known physical or medical characteristics”) (citation omitted); State v. Belt, 179 P.3d 443,
448 (Kan. 2008) (“In essence, the loci are merely addresses . . . .”).8
Moreover, as noted by the Supreme Court in King, there exists no incentive for the
police to unveil more intimate information contained in a suspect’s DNA, even if the police
8
The King Court explained the procedure for conducting forensic DNA analysis:
“Many of the patterns found in DNA are shared among all people, so forensic analysis
focuses on repeated DNA sequences scattered throughout the human genome, known as
‘short tandem repeats’ (STRs).” 133 S. Ct. at 1967 (quotations and citation omitted). The
analysis involves the examination of “alleles.” See id. (explaining that “[t]he alternative
possibilities for the size and frequency of these STRs at any given point along a strand of
DNA are known as ‘alleles’ . . . and multiple alleles are analyzed in order to ensure that a
DNA profile matches only one individual”) (citation omitted). The King Court observed that
“[f]uture refinements may improve present technology, but even now STR analysis makes
it ‘possible to determine whether a biological tissue matches a suspect with near certainty.’”
Id. (quoting Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 62
(2009)).
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had access to the technology to do so:
[E]ven if non-coding alleles could provide some [private medical] information,
they are not in fact tested for that end. It is undisputed that law enforcement
officers analyze DNA for the sole purpose of generating a unique identifying
number against which [other] samples may be matched. This parallels a
similar safeguard based on actual practice in the school drug-testing context,
where the Court deemed it significant that the tests at issue [in those cases]
look only for drugs, and not for whether the student is, for example, epileptic,
pregnant, or diabetic. If in the future police analyze [DNA] samples to
determine, for instance, an arrestee’s predisposition for a particular disease or
other hereditary factors not relevant to identity, that case would present
additional privacy concerns not present here.
133 S. Ct. at 1979 (quotations and citation omitted) (emphasis added); see also Albert E.
Scherr, Genetic Privacy & The Fourth Amendment: Unregulated Surreptitious DNA
Harvesting, 47 Ga. L. Rev. 445, 474 (2013) (acknowledging that “no evidence currently
exists” indicating that police analyze DNA samples “for information . . . beyond that
provided by the more standard 13-loci . . . testing”).
Petitioner does not cite, nor has our research revealed, a case holding that law
enforcement’s analysis of fingerprints left behind by a potential suspect implicates the
protections of the Fourth Amendment. In fact, the Supreme Court has given, albeit
impliedly, the constitutional “go ahead” for such police practices. See Dionisio, 410 U.S. at
14-15; see also Doe v. Poritz, 662 A.2d 367, 407 (N.J. 1995) (citing Cupp v. Murphy, 412
U.S. 291, 295 (1973), and Dionisio, 410 U.S. at 14, for the proposition that “no person can
have a reasonable expectation of privacy in her fingerprints.”). Petitioner, evidently
recognizing the Supreme Court’s tacit approval of fingerprint testing, argues not that the
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police in the present case would have been prohibited from analyzing fingerprints he left
behind at the station, but rather, that the DNA evidence in the present case is “physically and
functionally different than fingerprints,” and therefore subject to different treatment under
the Fourth Amendment.
We disagree with Petitioner that targeted analysis of the identifying loci within genetic
material differs in any meaningful way from analysis of a fingerprint. Indeed, it is generally
accepted that analysis of a person’s DNA, solely for purposes of identification, reveals no
more information about that person than does analysis of his or her latent fingerprints. King,
133 S. Ct. at 1963-64 (“The only difference between DNA analysis and fingerprint databases
is the unparalleled accuracy DNA provides.”); accord Williamson, 413 Md. at 542 (noting
that DNA tested for identification purposes is “akin to . . . a fingerprint”) (citation omitted).
In her concurring opinion in State v. Raines, 383 Md. 1 (2004), Judge Raker explained the
functional similarities between DNA used for identification purposes and fingerprints:
DNA type need be no more informative than an ordinary fingerprint. For
example, the [13 junk] loci . . . are noncoding, nonregulatory loci that are not
linked to any genes in a way that would permit one to discern any socially
stigmatizing conditions. The “profile” of an individual’s DNA molecule . . .
is a series of numbers. The numbers have no meaning except as a
representation of molecular sequences at DNA loci that are not indicative of
an individual’s personal traits or propensities. In this sense, the [13 loci are]
very much like a social security number—though it is longer and is assigned
by chance, not by the federal government. In itself, the series of numbers can
tell nothing about a person. But because the sequence of numbers is so likely
to be unique . . ., it can be linked to identifiers such as name, date of birth, or
social security number, and used to determine the source of DNA found in the
course of criminal investigations . . . .
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383 Md. at 45 (Raker, J., concurring) (quoting D.H. Kaye & Michael E. Smith, DNA
Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage,
2003 Wis. L. Rev. 413, 431-32 (2003)).
A number of federal courts and the courts of some of our sister states also recognize
the functional similarities between the non-coding regions of DNA and fingerprint evidence.
E.g., Haskell v. Harris, 669 F.3d 1049, 1063 (9th Cir. 2012) (stating that “[t]he collection
and use of DNA for identification purposes is substantially identical to a law enforcement
officer obtaining an arrestee’s fingerprints to determine whether he is implicated in another
crime”), aff’d en banc, 745 F.3d 1269 (9th Cir. 2014); United States v. Mitchell, 652 F.3d
387, 412 (3d Cir. 2011) (concluding that “DNA profiles . . . function as ‘genetic fingerprints’
used only for identification purposes”); State v. Surge, 156 P.3d 208, 212 (Wash. 2007) (en
banc) (observing that the collection of DNA evidence in that case was “limited to the same
purposes as fingerprints, photos, or other identifying information”); see also Edward J.
Imwinkelried & D.H. Kaye, DNA Typing: Emerging or Neglected Issues, 76 Wash. L. Rev.
413, 440 (2001) (“[F]or the present the better course is to treat human cells left in public
places like fingerprints in deciding what expectation of privacy is reasonable.”).
Petitioner contends that DNA differs from fingerprints because it has the potential to
provide more information about a person. Petitioner relies, in part, upon Skinner v. Railway
Labor Executives’ Association, 489 U.S. 602 (1989), and United States v. Davis, 690 F.3d
226 (4th Cir. 2012). The Supreme Court held in Skinner that the toxicological testing of
-18-
railroad employees’ blood and urine, in order to detect the presence of alcohol or drugs,
“intrude[d] upon expectations of privacy that society has long recognized as reasonable” and
thus constituted a Fourth Amendment search. 489 U.S. at 609-10, 616-17 (noting that the
“chemical analysis of the sample to obtain physiological data is a[n] . . . invasion of the tested
employee’s privacy interests”). In Davis, the United States Court of Appeals for the Fourth
Circuit, relying upon Skinner, held “that the extraction of Davis’ DNA sample from his
[lawfully seized] clothing and the creation of his DNA profile constituted a search for Fourth
Amendment purposes.” 690 F.3d at 246. The Davis Court cited Skinner for the following:
[B]ecause the analysis of biological samples, such as those derived from blood,
urine, or other bodily fluids, can reveal “physiological data” and a “host of
private medical facts,” such analyses may “intrude[] upon expectations of
privacy that society has long recognized as reasonable.” . . . Therefore, such
analyses often qualify as a search under the Fourth Amendment. . . . Similarly,
an analysis required to obtain a DNA profile, like the chemical analysis of
blood and urine at issue in Skinner, generally qualifies as a search, because an
individual retains a legitimate expectation of privacy in the information
obtained from the testing.
Id. at 243-44 (citations omitted). The Davis Court added that, at the time police lawfully
came into possession of Davis’s clothing, he was not under arrest, but rather, a “free person”
among the public at large, who enjoys “a greater privacy interest in [his or her] DNA than
would persons who have been arrested.” Id. at 244-45.
Skinner is of little assistance to Petitioner because here, unlike in Skinner, the targeted
analysis of the 13 identifying loci did not reveal “physiological data” about Petitioner, but
rather, revealed only identifying information. For much the same reason, Davis offers
-19-
Petitioner little succor. The Davis Court’s conclusion that the DNA testing at issue in that
case constituted a Fourth Amendment search rested on what may now be a faulty premise,
given the discussion in King that DNA analysis limited to the 13 junk loci within a person’s
DNA discloses only such information as identifies with near certainty that person as unique.9
Petitioner does not allege that the police in the present case tested any portion of his
DNA other than the 13 junk loci, nor does he claim that law enforcement, at present, has the
technological capabilities to do so. In short, Petitioner attempts to “evoke images of an
oppressive ‘Big Brother’ cataloguing our most intimate traits,” but the reality here is “far less
troubling.” Harris, 669 F.3d at 1059; accord Williamson, 413 Md. at 543 (finding that
Williamson’s argument regarding potential misuse of DNA beyond the testing of the 13 junk
loci, which was not alleged in the case, did not have “feet”).
Petitioner further claims that DNA is distinguishable from fingerprint evidence
because it is not visible to the unaided eye, whereas fingerprints left on a surface are more
readily apparent. Even so, the fact remains that a fingerprint, like the genetic material
swabbed here, has no independent value to the police until it is tested and compared to other,
previously collected fingerprints.
Petitioner finally contends that DNA evidence is used for different purposes than are
9
For the reasons we have discussed so far, the analysis of the junk loci contained
within the DNA collected from the chair is not a Fourth Amendment search because no
individual has a reasonable expectation of privacy in his or her identifying physical
characteristics. It therefore matters not that, at the time of the analysis, Petitioner was, in the
words of Davis, a “free person.” United States v. Davis, 690 F.3d 226, 245 (4th Cir. 2012).
-20-
fingerprints, after it is collected. We disagree. It cannot be doubted that “both DNA and
fingerprints can be used to link suspects to crime scenes.” Garcia-Torres v. State, 949
N.E.2d 1229, 1235 (Ind. 2011); accord Harris, 669 F.3d at 1063 (“The . . . use of DNA for
identification purposes is substantially identical to a law enforcement officer obtaining an
arrestee’s fingerprints to determine whether he is implicated in another crime.”). In the
present case, had the police dusted the chair in the police station for Petitioner’s fingerprints,
that evidence would have been used for the same purpose as his DNA: the police would
have analyzed the fingerprints to reveal their identifying characteristics and compared them
to any fingerprint evidence collected at the victim’s home.10 The only distinction that
reasonably can be drawn is that the DNA test results in the present case directly linked
Petitioner not merely to the crime scene but also directly and with certainty to the rape of the
victim.
In determining that Petitioner does not possess a reasonable expectation of privacy in
the identifying characteristics of his DNA, we continue down a path set forth by this Court
in Williamson v. State, supra. In that case, Williamson, who was in police custody awaiting
booking, discarded on the floor of his jail cell an empty cup out of which he had drunk. 413
Md. at 528. After Williamson was removed from the cell, the police retrieved the discarded
10
During oral argument, Petitioner argued that the police used his DNA for
“traditional crime detection” rather than “just identification.” Other courts have observed,
and we agree, that “‘[i]dentification’ encompasses not merely a person’s name, but also other
crimes to which the individual is linked.” Haskell v. Harris, 669 F.3d 1049, 1062 (9th Cir.
2012).
-21-
cup, submitted it to the crime lab for DNA analysis, and eventually discovered that DNA
extracted from the cup matched DNA collected at the scene of a crime committed
approximately four years earlier. Id. We addressed several theories advanced by Williamson
in connection with the officers’ collection of the discarded cup and the DNA testing of the
genetic material that Williamson had left on it. We concluded, first, that he had abandoned
any expectation of privacy in the cup itself, id. at 536-38, and, ultimately, that the police did
not violate the Fourth Amendment by testing the lawfully acquired DNA that Williamson had
deposited on the discarded cup, id. at 547.11
We addressed Williamson’s contention that he enjoyed a “heightened privacy interest
in avoiding DNA testing, because of the amount of information that could be revealed.” Id.
at 541 (emphasis added). We rejected the contention, noting that “Williamson’s DNA was
tested for identification only” and concluding that the DNA-related information disclosed by
examination of only the 13 junk loci was akin to the identifying information contained within
fingerprints. See id. at 542-43.
Petitioner, in arguing that he possessed a reasonable expectation of privacy in his
DNA, like Williamson, relies upon the amount of sensitive information police could have
unveiled if they misused his DNA for purposes other than identification. Id. at 542-43. We
11
The State does not argue in the present case that Petitioner abandoned any
expectation of privacy he might otherwise have in the DNA contained in the material left on
the chair, but rather, that Petitioner “never had a privacy interest [in his DNA] to abandon.”
We therefore do not consider whether Petitioner abandoned an expectation of privacy in the
DNA that was tested.
-22-
acknowledged in Williamson that “there may be debate regarding privacy concerns should
technological advances permit testing of DNA to glean more information from acquired
DNA than mere identification.” Id. at 543. Those concerns have not been raised in this case.
The present case, like Williamson, generates only the question of whether Petitioner had an
objectively reasonable privacy interest in the identifying characteristics of his DNA.
Some courts in our sister states have taken a similar tack, holding that “the use of
DNA for identification purposes only does not infringe on a privacy interest in one’s genetic
identity because the DNA is not being used to reveal personal information.” See Piro v.
State, 190 P.3d 905, 911 (Idaho Ct. App. 2008) (collecting cases). Closest to the present case
is an en banc decision of the Supreme Court of Washington, State v. Athan, supra.
In Athan, the police, who were investigating an unsolved murder, mailed to a suspect,
Athan, a fictitious letter, purporting to be from a law firm, asking if he wanted to join a class
action lawsuit. 158 P.3d at 31. When the police received Athan’s response, they extracted
his DNA from the saliva he had used to close the return envelope, analyzed that DNA, and
discovered that it matched a DNA sample recovered from the victim in the unsolved case.
Id. at 32. The Athan Court held that the “analysis of DNA obtained without forcible
compulsion and analyzed by the government for comparison to evidence found at a crime
scene is not a search under the Fourth Amendment.” Id. at 37. The court reasoned that
“[p]hysical characteristics which are exposed to the public,” such as those contained within
one’s DNA, “are not subject to Fourth Amendment protection” because the “[e]xamination
-23-
of such physical characteristics involves none of the probing into an individual’s private life
and thoughts that marks a[] . . . search.” Id. (quotations and citations omitted). The court
further observed that the “[p]olice may surreptitiously follow a suspect to collect DNA,
fingerprints, footprints, or other possibly incriminating evidence, without violating that
suspect’s” rights under the Fourth Amendment. Id.
We find persuasive the reasoning in Athan. Like Athan, Petitioner exposed to the
public, albeit not to the naked eye, the identifying content of the genetic material he left on
the armrests of the chair. Moreover, like Athan, Petitioner was not subjected to the forcible
collection of his genetic material, or any other bodily intrusion. See id.
Petitioner argues that, even if the police analyzed only the identifying characteristics
of his DNA, he had an objectively reasonable expectation of privacy in that evidence
because, unlike fingerprints, blood, or saliva, society is generally unaware that individuals
shed uncontrollably genetic material whenever they venture into public. Even assuming that
Petitioner is correct in his premise,12 the fact that one has not knowingly exposed to the
12
At least one commentator has suggested that society is generally aware of the
nature of DNA evidence:
Society knows about DNA and its capabilities through television and other
media. Furthermore, the use of DNA analysis is one click away on the
Internet. People can perform DNA tests from their homes, and third parties
can obtain the DNA of other individuals without restraint.
***
DNA evidence is no stranger to pop culture. Anyone who watches television
is likely aware that DNA can be left at the scene of a crime. Popular networks
(continued...)
-24-
public certain evidence does not, by itself, demonstrate a reasonable expectation of privacy
in that evidence. “[W]hile Katz says it is no search to discover what one ‘knowingly
exposes,’ it does not declare the exact reverse of this proposition. That is, the [Supreme]
Court did not say that discovery of what was not knowingly exposed is inevitably a search.”
1 LaFave, supra, § 2.2(d), at 649.
Petitioner finds support for his argument in the Supreme Court’s decision in Kyllo v.
United States, supra. There, the police suspected that an individual was growing marijuana
within his home. 533 U.S. at 29. As part of their investigation, the police, who remained in
their vehicle across the street from the suspect’s home, used a thermal imager to scan the
home. Id. at 29-30. The scan revealed that the roof over the garage and a side wall were hot
compared to the rest of the home, and substantially warmer than neighboring homes. Id. at
30. Based upon this information, the police believed that the suspect was growing marijuana
using halide lights. Id. Relying in part upon the results of the thermal imager scan, the
police applied for and obtained a search warrant for the suspect’s home, which, indeed,
contained an indoor marijuana growing operation. Id. The Kyllo Court held that, “[w]here,
as here, the Government uses a device that is not in general public use, to explore details of
12
(...continued)
broadcast shows such as CSI, Law and Order, and Forensic Files, all of which
feature DNA evidence in the laboratory and courtroom on a regular basis, have
a combined audience of over fifty-million viewers.
Laura A. Matejik, DNA Sampling: Privacy and Police Investigation in a Suspect Society,
61 Ark. L. Rev. 53, 78-80 (2008).
-25-
the home that would previously have been unknowable without physical intrusion, the
surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Id. at 40.
Petitioner contends that, like the use of thermal imager scanners on homes, the use of
biotechnology by police to create DNA profiles reveals characteristics of the person that are
not otherwise visible to the naked eye. Kyllo, however, does not stand for the broad
proposition that “using ‘sense-enhancing technology’ to acquire information about an
individual is, ipso facto, a search.” See D.H. Kaye, Who Needs Special Needs? On the
Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34:2 J.L.
Med. & Ethics 188, 190 (2006). Rather, the central teaching of Kyllo is that “any physical
invasion of the structure of the home, by even a fraction of an inch, [is] too much,” because
“all details [in the home] are intimate details.” 533 U.S. at 37 (quotations and citation
omitted). The Kyllo Court determined that the thermal imager was, in effect, a substitute for
a physical trespass into the home, and thus constituted a search for purposes of the Fourth
Amendment. See id. at 34.
Not so, here. Even if we were to accept that the DNA profiling technology used in
the present case is not “in general public use,”13 it remains that the police did not use that
technology as a substitute for a “trespass” on or into Petitioner’s body. See id. The police
13
At least one commentator has noted that “the claim that DNA profiling is not in
public use is, at worst, false, or at best, in need of refinement or development.” D.H. Kaye,
Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric
Data from Arrestees, 34:2 J.L. Med. & Ethics 188, 191 (2006).
-26-
did not seize genetic material from Petitioner, nor in any way search him for it, but rather,
collected it from an object on which the material had been left.
In the end, we hold that DNA testing of the 13 identifying junk loci within genetic
material, not obtained by means of a 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. That Petitioner’s DNA could have disclosed more intimate
information is of no moment in the present case because there is no allegation that the police
tested his DNA sample for that purpose. Because the testing of Petitioner’s DNA did not
constitute a search for the purposes of the Fourth Amendment, he was not entitled to
suppression of the DNA evidence or any fruits derived therefrom. The Court of Special
Appeals came to the same conclusion. We therefore affirm the judgment of that Court.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED;
COSTS TO BE PAID BY PETITIONER.
-27-
Circuit Court for Harford County
Case No. 12-K-08-001527
Argued: April 8, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 69
September Term, 2012
GLENN JOSEPH RAYNOR
v.
STATE OF MARYLAND
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
McAuliffe, John F. (Retired,
Specially Assigned),
JJ.
Dissenting Opinion by Adkins, J., which Harrell
and Greene, JJ. join.
Filed: August 27, 2014
Most respectfully, I dissent. The Majority holding represents a significant extension
of the State’s right to invade private rights of individuals in their DNA beyond that
authorized by the Supreme Court’s decision in Maryland v. King, 569 U.S. ___, 133 S. Ct.
1958, 186 L. Ed. 2d 1 (2013). 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 CODIS database, 1 all without implicating, let alone
respecting, any constitutional protection. The State may do this regardless of the legal
status of the person. In my view, this holding is unfounded, and a warrantless search of a
free citizen’s2 DNA against his will should be considered unreasonable and a violation of
the Fourth Amendment.
The Fourth Amendment guarantees that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated[.]” U.S. Const. amend. IV. An unbiased magistrate may grant a warrant
1
According to Md. Code (2003, 2011 Repl. Vol., 2013 Supp.), § 2-501(c) of the
Public Safety Article (“PS”):
(1) “CODIS” means the Federal Bureau of Investigation’s
“Combined DNA Index System” that allows the storage and
exchange of DNA records submitted by federal, state, and local
forensic DNA laboratories.
(2) “CODIS” includes the national DNA index administered
and operated by the Federal Bureau of Investigation.
2
By “free citizen” I mean a person who has not been arrested or detained on the
basis of probable cause or reasonable suspicion. I include in this category persons who are
not United States citizens, but who reside here legally.
to search and seize based upon probable cause. See id. If there were probable cause for
Raynor’s arrest, the police could have obtained Raynor’s DNA by following normal
booking procedures.3 The State could also have obtained his DNA if he were already a
parolee, a probationer, or incarcerated.4
A warrantless search, however, must be submitted to the test of reasonableness by
balancing legitimate government interests with a person’s privacy expectation. “The
touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search
is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an
individual’s privacy and, on the other, the degree to which it is needed for the promotion
of legitimate governmental interests.’” United States v. Knights, 534 U.S. 112, 118–19,
122 S. Ct. 587, 591, 151 L. Ed. 2d 497, 505 (2001) (quoting Wyoming v. Houghton, 526
U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408, 414 (1999)). The controlling
modern test to establish whether a person has a privacy interest entitled to protection under
the Fourth Amendment was penned by Justice Harlan in his concurrence in Katz v. United
States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring).
Justice Harlan set forth a two-part test: (1) that the person exhibits an actual, subjective
3
The victim had identified for the police anyone with whom she had contact who
might be a suspect. Approximately 23 persons consented to having their DNA swabbed,
but Raynor did not. As the Majority did not rest its opinion on the existence of probable
cause for Raynor’s arrest, and the State concedes Raynor was not under arrest, I do not
address the question of probable cause.
4
See Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006)
(parolee); Corbin v. State, 428 Md. 488, 52 A.3d 946 (2012) (probationer); State v. Raines,
383 Md. 1, 857 A.2d 19 (2004) (incarcerated person).
2
expectation of privacy; and (2) that society is prepared to recognize the privacy interest as
“reasonable.” Id. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d at 587–88.
As I see it, two distinct events happened in this case that raise Fourth Amendment
concerns. The first is the State’s collection of Raynor’s DNA from the police station chair
after inviting him to the station for questioning, at which time he refused to submit to DNA
testing. The second is the analysis and submission to the CODIS database of the DNA.
Here, the Majority neatly disregards the first step, relying on counsel’s words at oral
argument as a deemed “concession” from Raynor that the police acquired his DNA legally.
In doing so, the Majority lifts these events from their real-life context, and places them in
a more palatable milieu—comparing them to fingerprints the police happen to find in some
public place. This short-cut by the Majority avoids addressing the crucial issue of whether
police can legally “invite” free citizens into the station for questioning, with the intended
purpose of surreptitiously collecting their DNA for analysis and submission to CODIS, and
effectuate that collection against their express refusal.
King And The DNA Collection Act
As Knights instructs us, we must weigh the government’s interest against that of the
individual. To support its claim to a strong governmental interest in Raynor’s DNA, the
State proffers a body of case law, and state interests identified therein, which applies only
in the context of an arrest. Most, if not all, of these cases were decided under the DNA
Collection Act. Md. Code (2003, 2011 Repl. Vol., 2013 Supp.), § 2–501 et seq. of the
3
Public Safety Article (“PS”).5 This Act, which the police relied upon in King, mandates
collection of DNA from all persons arrested for certain crimes and contains clear
restrictions on use of that DNA. PS §§ 2–504(a)(3); 2–505(b)(2). Not only does it restrict
such collection to those arrested, but it also requires that the DNA be removed from the
database if the person is not convicted.6 The Act also restricts use of the DNA strictly to
“records that directly relate to the identification of individuals[.]” PS § 2–505(b)(1).
Significantly, there is no statute authorizing such police action against persons who are not
under arrest.
Unlike Mr. King, undisputedly, Raynor was not arrested and therefore was not
subject to the DNA Collection Act. Thus, in examining Raynor’s rights, we deal with a
different paradigm, involving rules markedly distinct from those applicable in Maryland v.
King, Williamson v. State, 413 Md. 521, 993 A.2d 626 (2010), and similar cases. As
explained below, arrestees are a class of persons with a diminished expectation of privacy.
The DNA Collection Act depends on this diminished expectation of privacy in mandating
collection of an arrestee’s DNA.
Unlike its lesser interest in free citizens, who possess the full panoply of
constitutional rights, the State has considerably weighty interests in learning the true
identity of an arrestee. The King Court enumerated five state interests advanced by the
DNA Collection Act: first, the need to identify “who is being tried”; second, the need to
5
Discussed infra.
6
See PS § 2–511 (requiring removal of a person’s DNA profile if she is not
convicted).
4
ensure the detainee does not create “inordinate ‘risks for facility staff’”; third, the need to
ensure persons are available for trial; fourth, the need to determine the threat posed to
society (by finding if the arrestee committed other crimes); and fifth, the possibility of
freeing an innocent man wrongfully imprisoned in his stead. King, 569 U.S. at ___, 133
S. Ct. at 1971–74, 186 L. Ed. 2d at 22–24 (citations omitted). Not one of those interests
applies to Raynor.
By endorsing the police action in this case against a free citizen, the Majority
opinion considerably extends the King holding beyond the boundary of what should be
considered constitutional.7 The limited scope of the Supreme Court’s holding in King is
revealed in the High Court’s concluding paragraph:
7
As Justice Scalia declared, “[s]olving unsolved crimes is a noble objective, but it
occupies a lower place in the American pantheon of noble objectives than the protection of
our people from suspicionless law-enforcement searches. The Fourth Amendment must
prevail.” Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1989, 186 L. Ed. 2d 1, 41
(2013) (Scalia, J., dissenting); see also Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602,
619, 109 S. Ct. 1402, 1414, 103 L. Ed. 2d 639, 672 (1989) (Marshall, J., dissenting)
(reasoning that searches as part of the “normal need for law enforcement” are not included
in the narrow category of warrantless searches). In Raines we upheld as legitimate a buccal
swab of an inmate under the DNA Collection Act, and expressly distinguished two cases
that failed the reasonableness test on grounds that the only government interest was general
evidence-gathering:
Additionally, both [City of Indianapolis v.] Edmond [, 531 U.S.
32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000)] and Ferguson [v.
City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed.
2d 205 (2001)] are distinguishable on their facts from the DNA
collection context for two reasons. First, the Edmond and
Ferguson cases involved searches of ordinary citizens without
individualized suspicion, not incarcerated criminals. Second,
the primary purpose of the government actions in those cases
5
In light of the context of a valid arrest supported by probable
cause respondent’s expectations of privacy were not offended
by the minor intrusion of a brief swab of his cheeks. By
contrast, that same context of arrest gives rise to significant
state interests in identifying respondent not only so that the
proper name can be attached to his charges but also so that the
criminal justice system can make informed decisions
concerning pretrial custody. Upon these considerations the
Court concludes that DNA identification of arrestees is a
reasonable search that can be considered part of a routine
booking procedure. When officers make an arrest supported
by probable cause to hold for a serious offense and they bring
the suspect to the station to be detained in custody, taking and
analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police booking
procedure that is reasonable under the Fourth Amendment.
569 U.S. at ___, 133 S. Ct. at 1980, 186 L. Ed. 2d at 32. The High Court expressed no
intent to authorize police, in their unfettered discretion, to invite free citizens to police
stations, collect their DNA when they leave, test the DNA to create a profile, and submit
the visitor’s profile to the CODIS Database, all against the free citizen’s wishes.
As I see it, here, the police conducted one search by collecting Raynor’s DNA from
the chair, and a second search when they tested it to create a profile. See, e.g., United
States v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007) (“There is, however, a second and
potentially much more serious invasion of privacy occasioned by the DNA Act. As we
recognized in Nicholas, the ‘analysis and maintenance of [offenders’] information’ in
CODIS, the federal database is, in itself, a significant intrusion. We are mindful of the vast
was not to identify individuals, but to gather evidence of
crimes, thus acting like a general warrant.
383 Md. at 21–22, 857 A.2d. at 31.
6
amount of sensitive information that can be mined from a person’s DNA and the very
strong privacy interests that all individuals have in this information.” (quoting Nicholas v.
Goord, 430 F.3d 652, 670 (2d Cir. 2005))); see also Mario W. v. Kaipio, 230 Ariz. 122,
128, 281 P.3d 476, 482 (Ariz. 2012) (“This second search presents a greater privacy
concern than the buccal swab because it involves the extraction (and subsequent
publication to law enforcement nationwide) of thirteen genetic markers from the arrestee’s
DNA sample that create a DNA profile effectively unique to that individual.”).
Alternatively, these two searches may be seen as two parts of a single search.
Without an authorizing statute with defined limitations on use of the DNA, under
the Majority opinion, the police have unfettered choice as to who to bring into the station
for non-permissive DNA collection and testing, thus allowing for arbitrary decisions.
Without the restrictions of the DNA Collection Act, the State also has the ability to retain
a private citizen’s DNA, to be mined in future years, for whatever purposes it desires. See
Amerson, 483 F.3d at 85; United States v. Kincade, 379 F.3d 813, 843 (9th Cir. 2004)
(Reinhardt, J., dissenting) (“[A]ll Americans will be at risk, sooner rather than later, of
having our DNA samples permanently placed on file in federal cyberspace, and perhaps
even worse, of being subjected to various other governmental programs providing for
suspicionless searches conducted for law enforcement purposes.”).
The Supreme Court in King emphasized that the DNA Collection Act mandated that
DNA be collected from all persons arrested for certain crimes, and the Court considered it
material that the officers had no discretion to decide whose DNA would be taken. See
King, 569 U.S. at ___, 133 S. Ct. at 1969–70, 186 L. Ed. 2d at 20–21. In all of the DNA
7
collection cases discussed by the parties, the government’s right to collect the DNA hinged
on the individual being part of a diminished status group, such as an arrestee. See, e.g.,
King, 569 U.S. ___, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (arrestee); United States v. Mitchell,
652 F.3d 387 (3d Cir. 2011) (arrestee); Williamson, 413 Md. 521, 993 A.2d 626 (2010)
(arrestee); State v. Raines, 383 Md. 1, 857 A.2d 19 (2004) (incarcerated person). As I
indicated, in each of these cases, the primary government interest was only established
once the person became a detainee or arrestee. Here, that critical linchpin is glaringly
absent.
Nature Of Privacy Interest In DNA And Supreme Court Protection Of Privacy
The privacy interest Raynor sought to protect, his DNA, is immensely personal and
private, and deserves the staunchest protection under the Fourth Amendment. DNA has
the potential to reveal enormous amounts of private information about a person. With
today’s technology, scientists have the power to discern genetic traits, behavioral
tendencies, propensity to suffer disease or defects, other private medical information, and
possibly more. Williamson, 413 Md. at 564, 993 A.2d at 652.8 Cf. Skinner v. Ry. Labor
Execs. Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413, 103 L. Ed. 2d 639, 659 (1989) (“It
is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a
host of private medical facts about an employee, including whether he or she is epileptic,
8
DNA contains “an individual’s entire genome, [and thus,] tissue samples retained
by the government threaten privacy interests the most, yet they receive less attention than
the computer profiles contained within DNA databases.” Elizabeth E. Joh, Reclaiming
“Abandoned” DNA: The Fourth Amendment and Genetic Privacy, 100 Nw. U. L. Rev.
857, 871 (2006).
8
pregnant, or diabetic.”). Raynor explicitly refused police acquisition of his DNA, and such
assertion of his privacy right deserved protection. His presence at the station and his
objection also distinguish the police action here from police finding DNA of some
unidentified person, which has some connection to a crime being investigated. The
Majority, though, in refusing to treat the collection of Raynor’s DNA from the chair as a
search for Fourth Amendment purposes based on counsel’s “concession,” turns a blind eye
to this important consideration.
The Supreme Court has repeatedly recognized the existence of privacy protection
outside of the Fourth Amendment context, particularly bodily privacy and the right of a
person to control information about himself and intimate aspects of life. See Lawrence v.
Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) (striking down law against
sodomy between consenting adults on privacy grounds); Roe v. Wade, 410 U.S. 113, 93 S.
Ct. 705, 35 L. Ed. 2d 147 (1973) (constitutional right of privacy encompasses decision
involving termination of pregnancy); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.
1678, 14 L. Ed. 2d 510 (1965) (constitutional right of privacy in use of contraceptives). If
a warrant is required for the police to see the personal intimate details kept secured in one’s
home,9 then logically a warrant is required to seize the same private information locked
inside of an individual. See Stephanie B. Noronha, Comment, Maryland v. King:
Sacrificing the Fourth Amendment to Build Up the DNA Database, 73 Md. L. Rev. 667,
9
See Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001)
(using thermal imaging device to gather information about heat in home’s interior
constitutes search).
9
685 (2014) (arguing that the reasoning in King “begs the question: why is it that the Court
finds privacy, secrecy, and autonomy within the four walls of the home paramount, but
does not hold intrusion into the human body to as high of a standard?” (Footnote omitted)).
Recent Federal Cases On Privacy Rights Even Without Physical Invasion
The ongoing debate regarding cloud technology and collecting intangible data
depicts the tremendous intrusions that can occur without a physical invasion. In its decision
in United States v. Davis, 690 F.3d 226, 231 (4th Cir. 2012), the Fourth Circuit warned of
police trampling on an individual’s Fourth Amendment rights when the police collected a
DNA sample from the defendant’s pants and created a profile without probable cause,
resulting in an unreasonable search. The court reasoned that the absence of a judicial
officer to approve or deny the use of an individual’s DNA accords police an unchecked
power that can be exercised arbitrarily. See id. at 249–50.
Less than three months ago, in a case involving a different Mr. Davis, the Eleventh
Circuit held that the government’s collection of electronic location information from the
defendant’s cell phone service provider, without probable cause, resulted in a violation of
the defendant’s Fourth Amendment protections. See United States v. Davis, 754 F.3d 1205,
1216–17 (11th Cir. 2014). The Eleventh Circuit rejected the government’s abandonment
and lack of physical intrusiveness justifications, agreeing with the proposition that when a
cell phone user receives a call, he does not voluntarily expose anything, even though the
location of his cell phone is automatically traced. Id. at 1217. The dual Davis cases support
the notion that an individual’s informational privacy should be protected by the Fourth
Amendment, even without physical intrusion.
10
More importantly, the Supreme Court, on June 25, 2014, issued its unanimous
decision in Riley v. California, holding that, even after a lawful arrest, the police could not
seize data from a cell phone in the arrestee’s possession without a warrant because of the
wealth of personal and private information stored there, including calls made and received.
___ U.S. ___, 134 S. Ct. 2473, ___ L. Ed. 2d ___ (2014). As Chief Justice Roberts wrote
for the Court: “[a]n Internet search and browsing history, for example, can be found on an
Internet-enabled phone and could reveal an individual’s private interests or concerns––
perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.”
___ U.S. at ___, 134 S. Ct. at 2490, ___ L. Ed. 2d at ___. Thus, the Supreme Court has
taken another important step in recognition of privacy in personal information not tied to a
physical intrusion.
Flaws In Majority’s Reasoning
The Majority opinion discounts the large amounts of highly personal details that
DNA reveals on grounds that here, the State only used the DNA profile for identification.
As I indicated earlier, the Majority also sidesteps Raynor’s claim for protection of his
privacy interests by seizing upon a “concession” that defense counsel made during oral
argument. The Majority’s logic goes like this: (i) defense counsel at oral argument said it
was “okay” for police to take the DNA off the chair in the police station, objecting only to
the scientific testing; (ii) the police therefore legitimately took possession of the DNA
without a search; and (iii) the only testing the police performed was of the junk DNA for
purposes of identification. Maj. Slip Op. at 9–10, 13–14.
11
This reasoning is flawed in several respects. First, we should not decide important
constitutional issues based on a statement made by counsel at oral argument. Unlike
matters of fact, we are not bound by counsels’ stipulations regarding legal principles. As
the Kentucky Supreme Court said, “[s]tipulations of the parties will not be allowed to
determine the decision of the court on matters involving constitutional or statutory
construction or other matters of public interest.” Com. ex rel. Breckinridge v. Nunn, 452
S.W.2d 381, 382 (Ky. 1970). Second, the police did not test Raynor’s DNA for
identification because they already knew full well who he was. And, because they were
not arresting Raynor, none of the State’s interests in safety and other concerns attendant to
the identity of incarcerated persons arose. Third, DNA collection and testing is still in its
infancy stage, and technology is constantly improving. Thus, it is not unreasonable to
believe that the government’s capacity for obtaining useful information from “junk” DNA
will expand significantly, and will involve the discovery of enlarged personal details in the
future.10 As there is no statute placing limits on either the length of time the DNA may be
10
Federal courts have recognized potential misuse as foreseeable long before Justice
Scalia’s warning in Maryland v. King last year:
Although the DNA collection as currently implemented
involves only junk DNA that is not associated with any known
physical or mental characteristics, “new discoveries are being
made by the day that challenge the core assumption underlying
junk DNA’s name—regions of DNA previously thought to be
‘junk DNA’ may be genic after all.” [United States v.]
Kincade, 379 F.3d [813,] 850 [(9th Cir. 2004)] (Reinhardt, J.,
dissenting)). Therefore, we agree that, “[s]hould the uses to
which ‘junk DNA’ can be put be shown in the future to be
significantly greater than the record before us today suggests,
12
retained or the uses to which it may be put, the State is free to test the DNA using scientific
techniques we can only imagine today.
The Majority’s limited-use-of-information rationale is also inconsistent with the
Supreme Court’s rulings in Kyllo v. United States 11 and Skinner v. Railway Labor
Executives’ Association.12 In those cases, the mere potential for intrusion on information
created an expectation of privacy. Kyllo v. United States, 533 U.S. 27, 38, 121 S. Ct. 2038,
2045, 150 L. Ed. 2d 94, 104 (2001) (“Limiting the prohibition of thermal imaging to
‘intimate details’ would not only be wrong in principle; it would be impractical in
application, failing to provide ‘a workable accommodation between the needs of law
enforcement and the interests protected by the Fourth Amendment[.]’” (citation omitted));
Skinner, 489 U.S. at 617, 109 S. Ct. at 1413, 103 L. Ed. 2d. at 659 (“It is not disputed,
however, that chemical analysis of urine, like that of blood, can reveal a host of private
a reconsideration of the reasonableness balance struck would
be necessary.” [United States v.] Amerson, 483 F.3d [73,] 85
n.13 [(2d Cir. 2007)].
United States v. Weikert, 504 F.3d 1, 13 (1st Cir. 2007); see also United States v. Davis,
657 F. Supp. 2d 630, 662 (D. Md. 2009) (“[T]here are significant privacy interests
implicated by the maintenance of one’s DNA profile in a government database, above and
beyond those implicated by the testing and comparison of one’s DNA profile to evidence
from a single, specific crime. Were law enforcement permitted to include individuals’
DNA profiles in searchable databases under these circumstances, it would open ‘a
backdoor to population-wide data banking.’” (citation omitted)).
11
Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).
12
Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413, 103
L. Ed. 2d 639, 660 (1989) (finding it “clear that the collection and testing of urine intrudes
upon expectations of privacy that society has long recognized as reasonable”).
13
medical facts about an employee, including whether he or she is epileptic, pregnant, or
diabetic.”). See also Albert E. Scherr, Genetic Privacy & the Fourth Amendment:
Unregulated Surreptitious DNA Harvesting, 47 Ga. L. Rev. 445, 471 (2013).
The lack of physical intrusion should not resolve the question of whether there was
a search. The Supreme Court has repeatedly held that an intrusion and a violation of the
Fourth Amendment can occur without crossing physical boundaries. See Kyllo, 533 U.S.
27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (thermal imaging); Katz, 389 U.S. 347, 88 S. Ct. 507,
19 L. Ed. 2d 576 (wiretap). Justice Harlan’s test moves away from strict property-rights
interests, and Katz rejected the need for trespass, holding that a Fourth Amendment
violation can occur by violating a person’s privacy without physical intrusion. See Katz,
389 U.S. at 353, 88 S. Ct. at 512, 19 L. Ed. 2d at 583. In light of today’s cutting-edge
technology, under the circumstances here, gathering Raynor’s DNA, testing to create a
profile, and submitting it to the CODIS database should not be considered as any less
intrusive a search and seizure than that which results from a cheek swab. The practical
result is the same and it should be seen for what it is: a significant search into the body and
permanent seizure of a person’s private information.13
13
See Skinner, 489 U.S. at 650, 109 S. Ct. at 1431, 103 L. Ed. 2d at 681 (Marshall,
J., dissenting) (“Only by erroneously deriding as ‘minimal’ the privacy and dignity
interests at stake, and by uncritically inflating the likely efficacy of the FRA’s testing
program, does the majority strike a different balance.”); Davis v. Mississippi, 394 U.S. 721,
728, 89 S. Ct. 1394, 1398, 22 L. Ed. 2d 676, 681 (1969) (noting that fingerprinting 24
youth[s] and releasing them without charge as a tool to find a rapist was minimally
intrusive, but violated their Fourth Amendment protections because it was “not authorized
by a judicial officer”).
14
The Majority’s approval of such police procedure means, in essence, that a person
desiring to keep her DNA profile private, must conduct her public affairs in a hermetically-
sealed hazmat suit.14 Moreover, the Majority opinion will likely have the consequence that
many people will be reluctant to go to the police station to voluntarily provide information
about crimes for fear that they, too, will be added to the CODIS database.
The State argues that any DNA shed in any public area is unprotected, an averment
that goes too far. The Fourth Amendment protects what a person “seeks to preserve as
private, even in an area accessible to the public.” Katz, 389 U.S. at 351, 88 S. Ct. at 511,
19 L. Ed. 2d at 582. In United States v. Davis, the Eleventh Circuit declared that the
defendant had “not voluntarily disclosed his cell site location information to the provider
in such a fashion as to lose his reasonable expectation of privacy.” 754 F.3d at 1217. I
strongly submit that a person’s DNA deserves at least as much protection as one’s
whereabouts based on cell phone data. The State concedes that Raynor did not volitionally
leave his DNA on the arms of the chair in the police station. Therefore, he still retains an
expectation of privacy in his intimate and personal genetic make-up.15
A New Approach For DNA
14
The Majority’s holding means that a person can no longer vote, participate in a
jury, or obtain a driver’s license, without opening up his genetic material for state collection
and codification. Unlike DNA left in the park or a restaurant, these are all instances where
the person has identified himself to the government authority. All these are troubling
consequences of the decision the Court makes today.
15
Of course the individual’s privacy rights in his DNA must yield to the State’s
interests in that the State may investigate and collect and analyze DNA found at or near the
scene of a crime, or on or near a weapon, or other means used to commit a crime. This
does not mean, however, that outside that context, the police may gather new DNA from
free citizens in an attempt to find a DNA match.
15
Raynor’s counsel argues that the Fourth Amendment requires a new approach that
takes into account the advanced technology that allows collection and harvesting without
invasion, and recent knowledge that we shed DNA everywhere we go throughout each day.
I agree and propose that we treat the zone of privacy not in terms of Raynor’s physical
DNA in the form of saliva or sweat, but his expectation of privacy from exposure of the
results of scientific tests performed on his DNA.
Conclusion
The State concedes that Raynor was not an actual suspect at the time his DNA was
taken and tested, because the one piece of information that caused police to ask him to
come to the station was the rape victim’s claim, two years after the crime, that she had a
hunch he may have been involved. This occurred after she had previously identified 22
other persons, whom the police interviewed as “persons of interest.” Moreover, Raynor
refused to give a DNA sample, and specifically said that he did not wish to be in the CODIS
database. Under these circumstances, the balance of the Katz reasonableness test shifts
dramatically. Here, the State lacks the weighty government interests that were present in
King and earlier cases. Such interests arise when the police possess probable cause to make
an arrest and take a person into custody, thus diminishing the person’s expectation of
privacy.
On the other hand, Raynor’s expectation of privacy in his DNA deserves the utmost
protection because he was a free citizen at the time of police questioning. The defining
traits of DNA illustrate dignitary, informational, and personal characteristics that the
16
Supreme Court has come to protect in other contexts, even without physical intrusion.
There was a search here, and it was an unreasonable one that violated Raynor’s Fourth
Amendment Constitutional rights. I would reverse the judgment of the Court of Special
Appeals, and remand the case to that court with direction to reverse the judgment of the
Circuit Court of Harford County and direct the court to grant Raynor’s motion to suppress.
Judges Harrell and Greene authorize me to state that they join the views expressed
in this dissent.
17