Raynor v. State

decision Majority’s for the a sounder basis would have formed assistance ineffective distorting governing the law without counsel. authorized have Judge HARRELL and RODOWSKY

Judge this say they join opinion. me to

99 A.3d 753 Joseph RAYNOR Glenn Maryland. STATE Term, 69, Sept. 2012. No. Maryland. Appeals

Court Aug. 2014. Denied Oct. 2014.

Reconsideration (CBLA) Analysis in Criminal Comparative Bullet Lead and Effect of Cases, cases). (2014) (collecting § Mr. Kulbicki 92 ALR 6th 549 Maryland Rule 4-332 to yet procedures set forth in has not followed the ground § on the of actual innocence under CP 8-301 seek a writ newly discovered evidence. (Warnken, LLC, Baltimore, L. Byron MD), Warnken on brief, for Petitioner/Cross-Respondent. (Daniel Jr., Jawor, Taylor, Atty.

Robert Asst. Gen. J. Asst. Gen.; Gansler, Atty. Douglas F. Atty. Maryland, Gen. of Baltimore, MD), brief, on Respondent/Cross-Petitioner. for DeWolfe, Defender, B. Mer- Stephen B. Public Esq.,

Paul Defender, cer, Forensics Atty., Office of the Public Esq., Chief Baltimore, MD, Division, Amicus Public Defender’s for Curiae Brief. HARRELL, BARBERA, C.J.,

Argued before: ADKINS, McDONALD, BATTAGLIA, GREENE, and JOHN (Retired, Assigned), JJ. Specially F. McAULIFFE BARBERA, C.J. Opinion rape has its the commission of appeal genesis

This later, years rape than two the victim of the 2006. More suspected that she police explained contacted the Petitioner, Raynor, perpetrator. had been the Joseph Glenn thereafter, agreed request Petitioner to the Shortly an interview. At some to come to the station for interview, Petitioner’s during police requested point for taking sample comparison of a DNA consent rape. collected at the scene of the He declined. DNA evidence had the interview concluded and Petitioner Minutes after station, who had noticed departed police, Petitioner of the chair in against his bare arms the armrests rubbing seated, in an he had been took swabs of the armrests which his DNA. The submitted those swabs attempt to collect analysis, which revealed that the to the crime lab inves- samples extracted from the swabs matched DNA rape. had collected from the scene of the tigators and, eventually, Petitioner was investigation Further ensued and related offenses. He filed charged first-degree rape with seeking suppression motion of the DNA evidence pre-trial therefrom, arguing all derived the warrant- evidence of cellular material that he shed testing less collection and police right his interview at the station violated during from unreasonable under the Fourth Amendment be free The court denied the suppression searches and seizures. motion, that Petitioner had no reasonable having concluded in the DNA evidence left on the chair. agreed ruling. with that Special Appeals The Court of Petitioner no longer disputes, as he did suppres- before the court, sion that the police lawfully obtained his DNA from the station, armrests of assume, the chair solely and we purposes of our present analysis, were not required have a warrant or individualized suspicion Petitioner’s rape commission of the collecting before those samples. Accordingly, the only legal question before us is whether analysis by identifying “junk” the 13 loci contained within Petitioner’s DNA was a search for pur- poses 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. rape Air, occurred in Bel County, Maryland Harford during early morning hours of April 2006. The facts material to its commission and the investigation that followed are undisputed. a.m., At approximately 5:00 perpetrator broke into the home of the through victim a patio door that led to the thereafter, basement. Shortly the perpe trator bedroom, entered the victim’s raped repeatedly, her fled the scene. The victim did not see her attacker’s face because, upon bedroom, entering he pressed pillow against her face and blindfolded her with his t-shirt. The noticed, however, victim Caucasian, that her attacker was had build, a medium and emanated a “metallic scent.” fled, After the perpetrator the victim ran to neighbor’s her home, where reported she rape to the police. Investiga- responded tors to the victim’s home and a crime scene techni- cian processed it for evidence. The technician collected mate- DNA, rial possibly containing including pillow blood from a found in the victim’s bedroom and the area near the door through which Meanwhile, the perpetrator had entered. police officer accompanied the victim to the hospital where she 1. We do not use the protect victim’s name or initials in an effort to her privacy. examination, a nurse took during which rape a

underwent vaginal and anal swabs. on numerous occasions contacted the

The victim potential to inform them about years the next two throughout time, consensual obtained During that suspects. with possible 20 individuals approximately samples DNA of the victim’s including several rape, connections to the 2006 matched the DNA samples those DNA None of neighbors. rape. of the day victim’s home on the collected from the investigator the lead the victim contacted July case, Dana to Wenger, First Class Trooper to the assigned rapist. Petitioner was the suspicion her that report to school gone that and Petitioner had victim she explained in which the owner of the home together, previous he was the occurred, that of the man who body type matched rape later, Trooper Wenger two weeks raped Approximately her. A him to contact her. asking at Petitioner’s home left note to later, trooper agreed called the Petitioner days few related day questions that to answer come to the station later rape investigation. to the station, Trooper Wenger at the Petitioner’s arrival

Upon him have a and directed him to a vacant office escorted thereafter, DeCourcey entered Sergeant James Shortly seat. The officers interview ensued. the room and 30-minute Petitioner, wearing a who was during noted the interview shirt, against arms rubbed his bare repeatedly short-sleeved odor chair, body carried a metallic of his and his the armrests smelling during had described to the odor the victim similar rape. interview, asked Trooper Wenger point during At some DNA of his taking of a swab Petitioner for his consent if consent that he would responded mouth. Petitioner they sample after destroy police agreed investigation rape. their of the When concluded assurance, provide Petitioner refused to give declined and the interview concluded. sample, Trooper Wenger Minutes escorted out of after Petitioner station, Sergeant DeCourcey took swabs armrests interview, the chair in sat during which Petitioner had the in an in placed sealed those swabs and them an envelope, later, days Trooper evidence locker. Two submitted Wenger Maryland the swabs to the Police State Forensic Sciences Division for DNA laboratory analysis. analysis The revealed the that DNA extracted from the swabs of the armrests matched the DNA extracted from blood collected at the scene rape. of the

Trooper relied lab’s Wenger upon the results of the DNA analysis, other police gathered as well as evidence the had during investigation, obtaining their for and applying war- Petitioner, to rants arrest an DNA sample, collect additional search arresting Petitioner, police and his home. After the station, and, transported him, him the to interviewed at some took a buccal That point, sample via a swab. DNA sample, like the DNA samples collected from the chair station, matched police DNA collected the victim’s home day rape. on the of the A DNA analysis second of the buccal swab revealed a match to DNA extracted vaginal from the anal swabs during rape obtained the victim’s examination.

The charged State Petitioner several of rape, with counts assault, burglary, related crimes. He was tried before a which jury, heard the results of the DNA analyses other linking evidence him to the The jury crimes. found Petitioner guilty crimes, two of rape counts and related for which the years’ court sentenced him a total of 100 imprisonment. The Suppression Hearing pre-trial Petitioner filed a to suppress motion the DNA police evidence the obtained from the chair in the police station, and the fruits derived argued therefrom.2 He him, 2. Petitioner asserted warrants to arrest collect addi- sample, upon predicated tional DNA and search his home were police DNA evidence obtained from the armrests chair sought any suppression He station. thus he made to statements his under Fourth be right violated Amendment police seizures, seizing searches and his free from unreasonable of the chair and then material3 from the armrests material for the 13 loci on the DNA strand that searching that him claimed in rape. connect He allowed the that, obtaining if the officer’s the alternative even unlawful by swabbing the chair was not an genetic material Amendment, of the Fourth purposes seizure for separate search that violated the nonetheless conducted analysis they performed Fourth Amendment when the material.4 motion, reasoning court denied the suppression

pertinent part: in this case? apply Fourth Amendment all [the]

[D]oes I it. he have very ... is a matter as see Does simple This expectation privacy society that is to prepared reasonable gets up of what’s left chair when he and recognize [on] no, to that as far as I am is leaves? answer concerned public he no such He is in a expectation privacy. has Yes, voluntarily he refused submit DNA building.... [to give He to there is no doubt about that. refused sample], consent, when refuses does that give consent. So he to police get sample] that if the can some other mean [a way, they can’t use it? Of course not. arrest, arrest,

police sample police took his and after his after any pursuant to recovered from his home the search warrant. evidence phrase perspiration this 3. Petitioner uses to describe skin and/or during cells in the he shed onto armrests chair his interview discussion, adopt, purposes station. For the of our we shall in places, "genetic certain the term material.” upon support argument, that relied the so-called 4. Petitioner Chadwick, E.g., cases.” United States v. "container (1977). He that the material he 53 L.Ed.2d reasoned deposited independent a closed on the chair was “container” with no that, "open" value the container to reveal its contents, DNA, namely required were to obtain a Petitioner’s and, rejected theory suppression we warrant. The court that as shall see, rely upon argument appeal. does on Petitioner not I sample think that the seizure of the did not violate So the Fourth Amendment at all because I don’t think the in I applies Fourth Amendment this situation because don’t any expectation think he had reasonable with regard [genetic to the he on chair. material] left

I don’t think DNA is any leaving different terms it anywhere than if fingerprint than he walks out of the [or] [police somebody takes his photograph. station] He is sitting there and police] picture [the ask can we take a no____So you ... to have other look people says at it. He [station], sidewalk, walks standing [he] outside the is on the they take picture. public He is in a place. When he there, goes any does he have expectation anything he going leaves that he is to continue to privacy right have a so, I it? don’t think so. And because I don’t think because all, I think don’t the Fourth Amendment applies because I any don’t think he had reasonable privacy] [of reasonable, ... that society prepared to recognize as then logic the same applies because the use of DNA evi- [the to obtain dence] the search warrants also is perfectly legiti- mate. the Motion Suppress

So is going to be denied....

The Appeal appeal On Special Court of Appeals, Petitioner con- that, in warrant, tended the absence of a proper the prohibited were from “analyzing they the swab took from the chair, developing a DNA profile, and it comparing to the DNA State, recovered from the crime scene.” Raynor v. 201 Md. (2011). App. 29 A.3d 617 Special The Court of Appeals held that the Fourth Amendment did not apply testing genetic chair, the material Petitioner left on the reasoning profile Petitioner’s DNA was used for identifi- cation purposes only and objectively he had “no reasonable expectation privacy in identifying the characteristics he left biological residue from the normal be gleaned

could upon The court relied 29 A.3d 617. Id. at behind.” fingerprints: and DNA evidence similarities between certain no which involves fingerprint, of a latent analysis the “[L]ike for identification body and is used into the intrusion physical case of DNA evi- in the instant analysis the only, purposes search.” Id. constitutionally protected ... not a dence was 617. 29 A.3d a writ of certiorari petition for Petitioner’s granted We posed by Petitioner:5 following questions consider the .,[6] a free .. Whether, the Fourth Amendment 1. under expectation objectively an reasonable maintains citizen involuntarily material genetic DNA found in the privacy ordinary biological pro through unknowingly deposited cesses? ..., deter- Whether, the under the Fourth Amendment

2. requires privacy of an individual’s mination in the information interest privacy consideration in the obtained, place interest just not it was found? which which cross-petition, conditional granted also State’s

We whether the applies, Amendment asks, the Fourth assuming limited constituted a material of Petitioner’s testing had commit- suspicion that he by reasonable justified intrusion in this case and, not, conduct if whether the rape ted exclusionary the Fourth Amendment compels application of the of the case on the basis disposition our rule. Given not, Petitioner, we need by presented questions threshold certiorari, stayed having granted we after 5. In November United Supreme Court of the appeal pending resolution present L.Ed.2d 1 King,-U.S.-, Maryland v. States of 2013, shortly (2013). August after the stay We lifted the opinion King. Court issued its 26 of that Article argued petition for writ of certiorari in his 6. Petitioner provides independent basis for Rights an Maryland Declaration of Yet, Appeals. in his Special judgment of the Court of reversal Court, endeavor[ ] to explains that he does "not Petitioner briefs to this independent reversal.” basis for Article 26 as address not, questions presents therefore do reach the the State in its conditional cross-petition.

II. In reviewing the denial of a motion to suppress evidence, here, as we do “we must the rely solely upon record State, developed suppression hearing.” the See Briscoe v. (2011). 422 Md. 30 A.3d 870 view the evidence “We may light and inferences that be drawn therefrom the most motion,” id., here, party prevails favorable to the who on the accept suppression findings State. We court’s factual We, they unless are shown to clearly be erroneous. Id. however, make our independent appraisal own constitutional suppression court’s ruling, by applying the law to the by facts found that court. Id.

None of the evidence pertinent legal issue raised present appeal disputed and the suppression court’s ruling reflects its having testimony credited the of Trooper Wenger and Sergeant DeCourcey. therefore accept We testimony officers’ related to the testing collection and Petitioner’s material analyze as we the parties’ legal arguments.

III. begin our We discussion clarifying legal what issue Court, is not before us. In his briefs to this Petitioner argues, court, as he did suppression before the the Fourth required Amendment to obtain authorizing warrants both the collection of the genetic material from the armrests of the chair and the DNA testing of that material. During us, however, argument Petitioner, oral before counsel, through discussion, stated “for the sake of that, this we would concede fine, ... it was okay police] [the take stuff off of their chair.” Counsel further really conceded that “it does not matter that much gets analyzed whether it as a one-step process two-step or a because process” obvious real “[t]he issue in this case is the content of what police] got when [the technology analyze their

they [Petitioner’s DNA].” used lawfully that the obtained police Petitioner’s concession Given chair, precise the armrests of the the material from testing law enforcement’s for decision is whether question purpose loci within that DNA material for the identifying the at a those loci match that of DNA left determining whether Fourth Amend- constitutes a search under the crime scene ment. of the United

The Fourth Amendment Constitution in “The of the provides, pertinent part: right people States houses, effects, against in persons, papers, be secure their seizures, shall not violated----” unreasonable searches and be — U.S. -, 1958, in v. 133 Recently, Maryland King, S.Ct. (2013), using 1 the held “that a 186 L.Ed.2d Court person’s on the inner tissues of a cheek order buccal swab the purposes DNA is a search” for samples to obtain Amendment, reasoning “[v]irtually any Fourth that intrusio[n] human ... will work an invasion of cherished body into the subject scrutiny.” is to constitutional personal security omitted). (quotations at and citations The Court Id. 1968-69 identify the explicitly testing did not decide whether 13 sample police King’s loci the later extracted ing how, if required analysis, Fourth Amendment separate all, analysis police would have differed had the obtained physical body. DNA absent a intrusion into his King’s implicates questions The case at bar those left unanswered law explain, For reasons we shall we hold that King. Peti- analysis identifying enforcement’s of the 13 loci within station, on the chair at tioner’s DNA left behind match with the collected order to determine a search, not a as that term is rape, from the scene of was parlance. in Fourth Amendment employed TV. law “that the accord rights

It is bedrock constitutional if implicated only Fourth Amendment ‘are ed ... infringed conduct of the officials at issue [government]

83 to consider society prepared ” State, 587, 605, Md. 69 A.3d 1066 v. 432 reasonable.’ Walker 715, 709, (2013) U.S. 107 Ortega, 480 (quoting O’Connor (1987) opinion)). The (plurality L.Ed.2d 714 S.Ct. form of conduct is ascertaining particular whether test for is often re Fourth Amendment for of the purposes search States, test, so named for Katz v. United as the Katz ferred to (1967), the case 19 L.Ed.2d 576 described concurrence much-quoted Justice Harlan’s which (Harlan, J., concurring). the test. See id. at S.Ct. for deter remains the lodestar Justice Harlan’s formulation purposes conduct is a search mining whether States, See, e.g., Kyllo v. United Fourth Amendment. (“[A] (2001) Fourth 150 L.Ed.2d

U.S. S.Ct. violates a government occurs when the Amendment search recognizes as privacy society of subjective expectation reasonable.”).7 which parts, of two “each of

The Katz test consists to for the Fourth Amendment must be satisfied order (1) actual, subjective a defendant must ‘demonstrate apply: (2) or searched’ and place of the item expectation privacy society prepared one that is expectation that the ‘prove ” Walker, 605, A.3d 432 Md. at 69 recognize as reasonable.’ 499, State, 488, A.3d 946 v. 428 Md. 52 (quoting 1066 Corbin State, 521, 534, (2012)); 413 Md. 993 see also v. Williamson (2010). subjective “A person expec demonstrates A.2d ‘to showing sought preserve that he or she privacy by tation Jones, -, 132 S.Ct. We overlook United States v. - U.S. do not 7. 945, (2012), in which the Court resorted to 181 L.Ed.2d 911 Amendment property-based approach to determine whether Fourth upon principles trespass search had occurred. The Court’s reliance expectation privacy’’ displaced the “reasonable law in Jones has not Indeed, made clear that “we do test set forth in the Jones Court Katz. trespassory trespass the exclusive test” and “where a classic not make analysis.” ... resort must be had to search is not involved Katz Jardines, -, 953-54; - U.S. 133 S.Ct. see also Florida v. S.Ct. 1417, 1409, (2013) (stating that reason "[t]he 185 L.Ed.2d 495 Katz ’ property- able-expectations added ... the traditional test ‘has been Jones, Amendment”) (quoting understanding based of the Fourth 952). S.Ct. at ” Williamson, as something private.’ 535, 413 Md. at 993 A.2d State, (quoting McFarlin v. 409 Md. 975 A.2d 862 (2009)). An objectively expectation reasonable of privacy, by “ contrast, Amendment, has ‘a source outside of the Fourth either reference to concepts of real or personal property law or to that are understandings recognized and permitted by society,’ subjective and constitutes ‘more than a expectation of ” Illinois, not being discovered.’ Id. (quoting Rakas v. 439 U.S. 128, (1978)). 143-44 n. 99 S.Ct. 58 L.Ed.2d 387 “We have no talisman that determines all cases those privacy expectations society is prepared accept as reasonable.” 715, 107 Ortega, Nonetheless, 480 U.S. at S.Ct. 1492. common experience and social upon norms bear our assessment of whether one has an objectively expectation reasonable in a privacy particular item or place. See California Greenwood, 51 n. 100 L.Ed.2d (1988) (“Expectations of privacy by general are established norms.”) (citation omitted); social LaFave, 1 Wayne R. Search (5th 2012) (“[I]t 2.1(d), § and Seizure at 587 ed. is necessary to ....[,] look to the customs past and values of the and present the structure of society, patterns interaction, [and] values.”) omitted). web of norms (quotations and citations Petitioner relies upon the Katz test to argue that analysis of the identifying loci within implicated his DNA protections of the Fourth Amendment. He first claims that he subjective demonstrated a in his when, during the course of his with Trooper interview Wenger and Sergeant DeCourcey, he declined to consent to taking of a DNA sample, thereby asserting a belief that “his genetic markers would not inspected.” be The State much, accepts as and so do we. claims,

Petitioner further as he must for argument his prevail, expectation DNA, that his of in privacy under circumstances, these was objectively reasonable. In making that argument, urges he us to ... squarely “focus on the ... map’ ‘treasure of information capable being of culled that, from” one’s DNA. He claims contrary to the conclusion of the Court of Special Appeals, individuals have “much

85 fin- in their DNA than their privacy greater” expectation amount of deeply DNA contains “a massive because gerprints information,” histo- including history, family “medical personal characteristics, disorders, ... propensity ry, behavioral in . . . commit certain behaviors the future.” objec- did not possess The State counters that Petitioner in the information the privacy tively reasonable loci, which, junk they only tested 13 police analyzed because strand, of the DNA do not disclose the regions unlike other expresses information about which Petitioner genetic intimate Instead, loci information related concern. those reveal law identity. regard, argues, this the State person’s of the DNA evidence this case testing enforcement’s left unknow- indistinguishable testing fingerprints from its does not public places, implicate surfaces which ingly upon Amendment. of the Fourth protections The Court has made agree with the State. We gener characteristics are identifying physical clear that one’s of the Fourth Amendment. See ally protection outside Dionisio, 14, 764, 35 States v. United Athan, (1973); 160 L.Ed.2d 67 see also State v. Wash.2d banc) (2007) (en (“Physical 158 P.3d characteristics subject are not to Fourth exposed public are [that] Mara, (citing protection.”) Amendment United States (1973)). analysis 35 L.Ed.2d 99 U.S. S.Ct. of such characteristics law enforcement “involves physical probing private none of the into an individual’s life and that marks” a Fourth Amendment search. See thoughts omitted). (citation Dionisio, U.S. S.Ct. information Consequently, specifically the character sought testing and obtained from the DNA Petitioner’s only identifying physical material—whether it revealed paramount assessing objective characteristics—is rea of his interest. sonableness asserted enforce- testing technology, With the advent law highly identifying ment has a effective means of an individual “unique” general population thereby identifying, as excluding, suspect or a criminal as the actor the commission of a at King, (noting among crime. the view enforcement, bar, “law the defense and the courts” of “DNA testing’s ‘unparalleled ability wrongly both exonerate the ”) identify guilty’ (quoting convicted and to Dist. Attor Osborne, ney’s the Third Judicial Dist. v. 557 U.S. Officefor (2009)). 52, 55,129 2308, 174 L.Ed.2d 38 As S.Ct. described for King, testing current standard forensic DNA relies “[t]he on an of the chromosomes located within the nucleus analysis of all human cells. The DNA material chromosomes composed ‘coding’ ‘non-coding’regions.” Id. at 1966-67 omitted). Coding regions—otherwise and citation (quotations genes—“contain necessary known as the information for a cell (citation omitted). to make Id. at 1967 proteins.” Non-coding regions, directly which do not relate production DNA; proteins, generally junk are referred to as it is these junk DNA that regions certainty are “used with near identify person.” Although highly Id. useful for identifica junk tion not purposes, far-reaching “does show more Id.; complex characteristics like traits.” accord Williamson, 413 Md. at 993 A.2d 626 that the 13 (noting junk loci consist of stretches of DNA that “do not presently recognize any traits” and “are not associated with known characteristics”) (citation omitted); physical or medical State (“In Belt, 949, 179 (2008) essence, 285 Kan. P.3d ”).8 merely loci are addresses.... King explained procedure conducting

8. The Court for forensic DNA analysis: "Many patterns among found in DNA are shared all people, analysis repeated sequences so forensic focuses on scat- throughout genome, repeats’ tered the human known as 'short tandem (STRs).” omitted). (quotations 133 S.Ct. at 1967 and citation The analysis (explaining involves the examination of See id. "alleles.” possibilities frequency “[t]he alternative for size and of these STRs any given point along a strand of DNA are known as 'alleles’ ... and analyzed multiple profile alleles are in order ensure that DNA individual”) (citation omitted). King matches one Court “[fjuture may present improve technology, observed that refinements analysis 'possible but even now STR makes it to determine whether a ” biological suspect certainty.’ (quoting tissue matches a with near Id. Osborne, Attorney’s Dist. the Third Judicial Dist. v. Office (2009)). S.Ct. 174 L.Ed.2d Moreover, King, there by Supreme as noted Court for the to unveil more intimate police exists no incentive DNA, in a even if the suspect’s police information contained technology to do so: had access [private if could some non-coding provide alleles [E]ven information, for they are not fact tested that medical] undisputed analyze It is that law enforcement officers end. purpose generating unique identifying DNA for the sole samples may which be matched. against [other] number actual parallels safeguard practice This a similar based on context, drug-testing the school where the Court deemed it only that the tests at issue those look significant [in cases] is, example, for and not for whether the student for drugs, or diabetic. If in the future epileptic, pregnant, determine, instance, analyze for an arres- samples [DNA] predisposition particular tee’s for a disease or other heredi- tary identity, present factors not relevant to that case would additional concerns not here. privacy present omitted) (quotations 133 S.Ct. at 1979 and citation (emphasis added); Scherr, Privacy see also Albert E. Genetic & The DNA Har- Unregulated Surreptitious Fourth Amendment: (2013) 445, vesting, 47 Ga. L.Rev. 474 that “no (acknowledging currently indicating analyze evidence exists” that samples beyond “for information ... that provided by testing”). more standard 13-loci ... cite, revealed,

Petitioner does not nor has our research holding case that analysis fingerprints law enforcement’s left behind a potential suspect implicates protections fact, the Fourth Amendment. Supreme Court has given, impliedly, albeit the constitutional “go ahead” such Dionisio, 14-15, 764; police practices. See atU.S. 93 S.Ct. Poritz, (1995) see also Doe v. 142 N.J. 662 A.2d (citing Cupp Murphy, U.S. S.Ct. (1973), Dionisio,

L.Ed.2d 900 410 U.S. at for the that “no proposition person can have a reasonable Petitioner, in her fingerprints.”). evi- dently recognizing tacit approval Court’s fingerprint testing, argues not that the in the present from prohibited analyzing fingerprints would have been

case station, rather, the DNA left behind at but he functionally case is present “physically evidence in the subject than and therefore to different fingerprints,” different under the Fourth Amendment. treatment targeted analysis with Petitioner that disagree We meaning- any loci within material differs identifying Indeed, it is way analysis fingerprint. generally ful of a DNA, solely for analysis person’s purposes of a accepted identification, per- no more information about that reveals King, analysis fingerprints. son than does of his or her latent (“The difference between DNA 133 S.Ct. at 1963-64 accuracy is the analysis fingerprint unparalleled databases Williamson, 542, Md. at 993 provides.”); DNA accord 413 is (noting purposes A.2d 626 that DNA tested for identification (citation omitted). In concur- fingerprint”) “akin to ... a her Raines, (2004), 1, in v. 383 Md. 857 A.2d 19 ring opinion State Raker the functional similarities between Judge explained purposes fingerprints: DNA used for identification ordinary than an DNA need be no more informative type junk] loci ... are noncod- fingerprint. example, For the [13 in any not to a ing, nonregulatory genes loci are linked way permit any socially stigmatiz- that would one to discern mole- conditions. The of an individual’s DNA ing “profile” ... is a of numbers. The numbers have no cule series of molecular meaning except representation sequences as of an individual’s person- at DNA loci that are not indicative sense, very In loci propensities. are] al traits or this the [13 it is security number—though longer much like a social chance, not the federal assigned by government. is itself, can nothing person. the series of numbers tell about likely of numbers is so to be sequence But because the name, ..., such as date unique it can be linked to identifiers number, birth, security or social and used determine in criminal investiga- the source of DNA found the course of tions .... (Raker, J., 45, 19 concurring) (quoting

383 Md. at 857 A.2d Smith, Databas- Kaye D.H. & Michael E. Identification

89 and the Case Legality, Legitimacy, Population-Wide es: (2003)). 413, Coverage, 2003 Wis. L.Rev. 431-32 of our A number of federal courts and the courts of some recognize sister states also the functional similarities between non-coding regions fingerprint of DNA and evidence. (9th Cir.2012) Harris, 1049, Haskell v. 669 F.3d 1063 E.g., collection use of DNA for identification (stating that “[t]he substantially is identical to a law enforcement officer purposes obtaining an arrestee’s to determine whether he fingerprints banc, crime”), implicated aff,d is another en 745 F.3d (9th Cir.2014); Mitchell, 387, 412 United States v. 652 F.3d Cir.2011) (3d (concluding that “DNA ... function as profiles ‘genetic fingerprints’ purposes”); used for identification (2007) (en Surge, State 160 Wash.2d 156 P.3d banc) (observing that the collection of DNA evidence case was “limited to the same as purposes fingerprints, photos, information”); identifying or other see also Edward J. Im Kaye, winkelried & D.H. or Typing: Emerging Neglect Issues, (2001) (“[F]or ed present Wash. L.Rev. the better in public places course is treat human cells left like fingerprints deciding what

reasonable.”).

Petitioner contends that DNA differs from fingerprints because has potential it more information provide about relies, Petitioner person. part, upon Railway Skinner v. Association, Labor Executives’ U.S. S.Ct. (1989), Davis,

103 L.Ed.2d 639 and United States 690 F.3d (4th Cir.2012). The Supreme Court held in Skinner that toxicological testing of railroad employees’ blood and urine, in order to presence drugs, detect of alcohol or upon of expectations privacy society long “intrude[d] that has as recognized reasonable” and thus constituted a Fourth 616-17, 609-10, Amendment search. 489 U.S. at (noting analysis that the “chemical of sample obtain data is ... physiological invasion of the tested a[n] interests”). Davis, employee’s privacy the United States Skinner, Circuit, Court of for the Fourth Appeals relying upon held “that the extraction of Davis’ from his sample DNA of his DNA clothing profile and the creation

[lawfully seized] purposes.” for Fourth Amendment constituted search at 246. The Davis Court Skinner following: cited for the F.3d such as those analysis biological samples, of [B]ecause fluids, blood, urine, can reveal bodily or other derived facts,” “host of medical private data” and a “physiological upon expectations privacy analyses may “intrude[ ] such ... There- long recognized has as reasonable.” society that fore, as a search under the analyses qualify such often Amendment____ analysis an Similarly, required Fourth blood and analysis like the chemical profile, obtain a DNA Skinner, search, as a generally qualifies urine at issue legitimate expectation retains a because individual testing. from the in the information obtained privacy (citations omitted). The Davis Court added Id. at 243-44 Davis’s that, lawfully came into possession at the time rather, arrest, person” not under but a “free clothing, he was “a large, enjoys greater privacy who among public than who have persons or would [his her] interest been arrested.” Id. at 244-45. here,

Skinner is of little assistance to Petitioner because Skinner, analysis identifying of the 13 targeted unlike in Petitioner, but loci not reveal data” about “physiological did rather, information. For much the only identifying revealed succor. The Davis Davis offers Petitioner little reason, same in that case testing that the DNA at issue Court’s conclusion may on what a Fourth Amendment search rested constituted King faulty given now the discussion premise, be junk analysis person’s limited to the 13 loci within with near such information as identifies DNA discloses unique.9 as certainty person far, junk analysis loci we have discussed so 9. For the reasons from the chair is not a Fourth contained within the DNA collected no individual has a reasonable Amendment search because physical identifying characteristics. It therefore in his or her was, that, analysis, in the words at the time of the Petitioner matters not Davis, (4th Davis, person.” States v. 690 F.3d a "free United Cir.2012). does not that the in the case allege police present Petitioner loci, any portion junk tested of his DNA other than the 13 nor enforcement, present, does he claim that law at has the short, technological capabilities to do so. In Petitioner at images ‘Big to “evoke of an Brother’ cata tempts oppressive traits,” our most intimate but the here is “far loguing reality Harris, 1059; troubling.” 669 F.3d at accord less William son, at that (finding 413 Md. 993 A.2d 626 Williamson’s argument beyond misuse of regarding potential loci, case, testing junk of the 13 which was not in the alleged “feet”). did not have

Petitioner further claims distinguishable that DNA is fingerprint evidence because it is not visible to the unaided eye, fingerprints whereas left on a surface are more readily so, apparent. Even the fact remains that a fingerprint, like here, material swabbed has no value independent other, police until it is tested and compared previous- ly fingerprints. collected

Petitioner finally contends that DNA evidence is used for purposes different than are after it is fingerprints, collected. disagree. It cannot be that We doubted “both DNA and link fingerprints can be suspects used to crime scenes.” State, (Ind.2011); Garcia-Torres v. 949 N.E.2d Harris, (“The accord 669 F.3d at 1063 ... use of DNA for identification purposes substantially identical to a law en forcement officer obtaining fingerprints arrestee’s to deter crime.”). mine whether he is implicated another case, had present dusted the chair in the police station for fingerprints, Petitioner’s that evidence would have purpose been used the same as his DNA: would analyzed fingerprints have to reveal identifying their compared characteristics and them to any fingerprint evidence collected the victim’s home.10 The only distinction that During argument, argued 10. oral Petitioner used his “just DNA for “traditional crime detection” rather than identification.” “ observed, ‘[(Identification' agree, Other courts have and we name, encompasses merely person’s not but also other crimes to in can is that the DNA test results

reasonably be drawn to the crime directly merely case linked Petitioner not present directly certainty rape scene also and with to the but victim. possess

In that Petitioner does not reason determining in of privacy identifying characteristics expectation able DNA, by continue down a set forth this Court path his we State, Williamson, case, supra. that who Williamson discarded on the floor police custody awaiting booking, was in jail empty cup of his cell an out of which he had drunk. 413 626. After was removed Md. at 993 A.2d Williamson cell, the retrieved the discarded submitted cup, from the analysis, eventually it crime lab for DNA discover from the matched DNA collected cup ed that DNA extracted approximately years at the scene of a crime committed four by earlier. Id. We addressed several theories advanced Wil of the dis liamson connection with the officers’ collection that testing carded and the DNA material cup concluded, first, had left on it. that he had Williamson We itself, at any privacy in the id. expectation cup abandoned 626, and, 536-38, that the did not ultimately, 993 A.2d by testing lawfully the Fourth Amendment ac violate had on the quired deposited DNA that Williamson discarded at 626.11 cup, id. 993 A.2d enjoyed contention that he We addressed Williamson’s avoiding testing, interest in because “heightened privacy Id. at of the amount of information could be revealed.” added). rejected A.2d 626 the conten- (emphasis We tion, for noting that ‘Williamson’s DNA was tested identifica- that the information only” concluding tion DNA-related Harris, which the individual is linked.” Haskell v. 669 F.3d (9th Cir.2012). present argue in the case that Petitioner aban- 11. The State does not any expectation privacy might he have in the DNA doned otherwise chair, rather, Petitioner contained in the material left on the but privacy to abandon.” We therefore [in DNA] "never had a interest his priva- whether Petitioner abandoned an do not consider cy in the DNA that was tested. junk disclosed examination loci was akin to identifying information contained within fingerprints. See 542-43, at id. A.2d 626.

Petitioner, in arguing possessed that he a reasonable expec- DNA, Williamson, tation of like relies upon amount of sensitive information could have unveiled if they purposes misused his DNA other than identification. 542-43, Id. at 626. acknowledged A.2d We Williamson may that “there be regarding privacy debate concerns should technological permit testing glean advances of DNA to more information from acquired DNA than mere identification.” Id. 993 A.2d 626. Those concerns have not been raised in Williamson, case, this The present generates case. like the of whether Petitioner question objectively had reason- privacy identifying able interest the characteristics his DNA. tack,

Some courts our sister states have taken a similar holding that “the use DNA for identification purposes only infringe does not on a privacy genetic interest in one’s identity because the DNA is not being personal used to reveal informa- State, tion.” See Piro v. 146 Idaho 190 P.3d cases). (Ct.App.2008) (collecting present Closest to the case is an en banc decision of the Washington, Court of Athan, supra. State v. Athan, police, the who investigating were an unsolved

murder, Athan, letter, mailed to a suspect, a fictitious purport- firm, ing to be from a law if asking join he wanted to a class action lawsuit. 158 P.3d at 31. When the received Athan’s response, they extracted his DNA from the saliva he had DNA, used to close the return envelope, analyzed that discovered that it sample matched DNA recovered from the victim in the unsolved case. Id. at 32. The Athan Court held that the “analysis DNA obtained without compul- forcible sion analyzed by government comparison to evi- dence found at a scene not a crime is search under the Fourth Amendment.” Id. at 37. court reasoned that “[pjhysical characteristics which are exposed public,” such as those Fourth DNA, subject “are not one’s

contained within of such because protection” “[e]xamination Amendment into an probing involves none of the characteristics physical ... that marks thoughts a[ ] life and private individual’s omitted). The court citations (quotations search.” Id. follow may surreptitiously that the “[pjolice further observed DNA, possi- or other fingerprints, footprints, to collect suspect evidence, that violating suspect’s” incriminating without bly Amendment. Id. under the Fourth rights Athan, in Athan. Like reasoning persuasive findWe eye, naked not to the public, to the albeit exposed Petitioner he left on the genetic material identifying content of Moreover, Athan, was like Petitioner chaX. armrests of the material, his genetic forcible collection of subjected not to the id. bodily intrusion. See any or other that, analyzed only if the police even argues Petitioner DNA, objectively he had an of his identifying characteristics because, in that evidence expectation privacy reasonable blood, saliva, un society generally or fingerprints, unlike uncontrollably material shed aware that individuals that Peti assuming Even they public. venture into whenever has not the fact one premise,12 is correct tioner not, evidence does public certain knowingly exposed itself, a reasonable demonstrate society generally suggested that is commentator has 12. At least one DNA evidence: aware of the nature of through capabilities television and Society about DNA and its knows Furthermore, away analysis click the use of DNA is one other media. homes, People perform DNA tests from their the Internet. can on individuals without parties third can obtain the DNA of other and restraint. Anyone stranger pop culture. who watches evidence is no DNA of a crime. likely aware that DNA can be left at the scene television is Order, CSI, Law and Popular broadcast shows such as networks Files, laboratory feature DNA evidence in the Forensic all of which basis, regular a audience of over a have combined and courtroom on fifty-million viewers. Privacy Investigation.in Matejik, Sampling: Police DNA Laura A. (2008). Suspect Society, Ark. L.Rev. 78-80 says evidence. Katz it is no search to discover what “[W]hile ‘knowingly exposes,’ one it does not declare the exact reverse is, proposition. [Supreme] of this That Court did not say discovery knowingly exposed inevitably of what was not LaFave, 2.2(d), § supra, search.” at 649. support argument Petitioner finds for his in the Supreme States, There, Kyllo decision in supra. Court’s United that an police suspected growing marijuana individual was 29, 121 within his home. 533 U.S. at S.Ct. 2038. As part investigation, police, their who remained in their vehicle home, across the street from the suspect’s used thermal 29-30, imager to scan the home. Id. at 121 S.Ct. 2038. The scan garage revealed that the roof over the and a side wall home, compared were hot to the rest of the substantially warmer than neighboring homes. Id. at S.Ct. 2038. information, upon Based this believed that suspect growing marijuana was halide using lights. Rely- Id. ing part scan, upon imager results the thermal police applied for and obtained a search warrant for the home, which, indeed, suspect’s marijuana contained an indoor growing operation. Kyllo that, “[w]here, Id. The Court held here, as the Government uses a in general device that is not use, public explore details the home that previous- would ly have been intrusion, unknowable without physical the sur- veillance is a ‘search’ and is presumptively unreasonable with- 40,121 out a warrant.” Id. at S.Ct. 2038. that,

Petitioner contends like the use of thermal imager homes, scanners on the use of biotechnology by police to create profiles reveals person characteristics of the are not otherwise visible to eye. Kyllo, however, the naked does not stand for proposition the broad that “using ‘sense- enhancing technology’ to acquire information about an individ- is, ipso facto, ual a search.” See D.H. Kaye, Who Needs Needs? Special On the Constitutionality Collecting Arrestees, and Other Biometric Data 34:2 J.L. Med. & (2006). Rather, Ethics the central teaching Kyllo is that “any physical home, invasion the structure of the inch, much,” even a fraction of an too [is] because “all details at details.” 533 U.S. are intimate home] [in omitted). Kyllo The Court and citation 2038 (quotations was, effect, a substitute imager thermal that the determined home, and thus constituted into the trespass for a physical id. at Amendment. See of the Fourth purposes search for 2038. S.Ct. if so, accept Even we were Not here. “in general case is not present used technology

profiling did not use use,” it remains that public on or into Petition “trespass” for a technology as substitute material genetic not seize See id. did body. er’s rather, it, him for but Petitioner, any way search from nor had left. on which the material been object it from an collected identifying end, testing that DNA of the we hold material, of a not obtained means junk loci within is no more a search person’s body, into the intrusion physical Amendment, testing than is the of the Fourth purposes identifying fea- any other or the observation fingerprints, age, body type, apparent to the public—visage, ture revealed have disclosed more That DNA could skin color. Petitioner’s present moment in the case is of no intimate information tested his DNA allegation no that the there is because of Petitioner’s testing Because the purpose. for that sample of the purposes a search for the DNA did not constitute Amendment, suppression he was not entitled Fourth The Court fruits derived therefrom. any DNA evidence or conclusion. therefore came to the same We Appeals Special of that Court. judgment affirm the APPEALS THE COURT OF SPECIAL JUDGMENT OF PETITIONER. AFFIRMED; BE PAID BY COSTS TO GREENE, ADKINS, JJ., HARRELL, dissent. that "the claim that DNA has noted 13. At least one commentator worst, false, best, is, need of public or at profiling not in use Kaye, Special Needs Needs? development.” D.H. Who refinement or Constitutionality Collecting Biometric Data DNA and Other On the (2006). Arrestees, & 34:2 J.L. Med. Ethics ADKINS, J., in which HARRELL dissenting, and GREENE, JJ., join. I Majority holding

Most dissent. The respectfully, repre significant right sents a extension of the State’s to invade DNA private rights beyond individuals their that author v. by Maryland King, ized Court’s decision (2013). -, 569 1 U.S. 186 L.Ed.2d that, result of the Majority opinion searching is short home, via touch person entering may or her the State collect DNA, any person’s create a it profile, add to the database,1 implicating, CODIS all without let alone respecting, any protection. may constitutional The State do this regard view, less of the legal person. my status this holding unfounded, and a warrantless of a search free citizen’s2 against DNA his will should be considered unreasonable and a violation of the Fourth Amendment.

The Fourth Amendment guarantees right “[t]he houses, people to be secure in persons, papers, their effects, against seizures, unreasonable searches and shall not Const, be U.S. amend. An magis violated[.]” IV. unbiased may grant trate a warrant to search upon and seize based probable cause. If See id. there were cause for probable arrest, Raynor’s could have Raynor’s obtained DNA by normal following booking procedures.3 The State could (2003, 2-501(c) According Repl.VoL, Supp.), § to Md.Code 2011 1. ("PS”): Safety of the Public Article (1) Investigation's "CODIS” means Federal Bureau of "Com- System” bined DNA storage exchange Index that allows the federal, state, by DNA records submitted and local forensic DNA laboratories. (2) “CODIS” includes the national index administered and operated by Investigation. the Federal Bureau of By person “free citizen” I mean a who has not been arrested or 2. probable suspicion. detained on the basis cause or reasonable I citizens, category persons include in this who are not United States but legally. who reside here police anyone 3. The victim had identified for the with whom she had might suspect. Approximately persons contact who be a consented swabbed, having Raynor their Majority but did not. As the did if already parolee, his DNA he were also have obtained or incarcerated.4 probationer, however, search,

A warrantless must be submitted balancing legitimate government test of reasonableness “The touch person’s privacy expectation. interests with a reasonableness, Fourth Amendment is and the stone of the on the ‘by assessing, of a search is determined reasonableness hand, it intrudes an individual’s degree upon one to which and, other, it is degree on the to which needed ” interests.’ United promotion legitimate governmental 112, 118-19, Knights, v. States S.Ct. (2001) (quoting Wyoming Houghton, 505

L.Ed.2d 1297, 1300, 408, 119 S.Ct. L.Ed.2d U.S. (1999)). test to whether a controlling modern establish interest entitled to under the privacy protection has a person by Justice Harlan penned Fourth Amendment was States, 347, in Katz v. United 389 U.S. 88 S.Ct. concurrence (1967) (Harlan, J., 507, concurring). Justice 19 L.Ed.2d 576 (1) person Harlan forth a test: that the exhibits two-part set (2) actual, subjective expectation privacy; the interest as “rea society prepared recognize 516, sonable.” Id. at 19 L.Ed.2d at 587-88. 88 S.Ct. it, in this case that happened As I see two distinct events raise Fourth Amendment concerns. The first is the State’s police DNA from the station chair after Raynor’s collection questioning, him to station for at which time he inviting the testing. analysis to submit to DNA The second is the refused Here, to the CODIS database of the DNA. the and submission neatly step, relying the first on counsel’s Majority disregards from argument Ray- words at oral as a deemed “concession” probable Raynor’s opinion cause for not rest its on the existence of arrest, arrest, Raynor I do not and the State concedes was not under question probable cause. address California, L.Ed.2d 4. See Samson v. State, (2012) (2006) (parolee); Corbin v. 428 Md. 52 A.3d 946 Raines, (incarcer- (2004) (probationer); State v. 383 Md. 857 A.2d 19 person). ated so, legally. doing his DNA police acquired nor that context, and lifts these events from their real-life Majority palatable milieu—comparing them in a more them places happen public place. to find some fingerprints the crucial Majority addressing This short-cut avoids into legally of whether can “invite” free citizens issue questioning, purpose the station for with the intended analysis their DNA and submis- surreptitiously collecting CODIS, that collection their against sion to and effectuate refusal. express

King And The DNA Collection Act us, weigh must Knights government’s As instructs we To its claim to against support interest individual. DNA, Raynor’s the State strong governmental interest law, of case and state interests identified proffers body only therein, in the context of an arrest. applies which Most, all, if not of these cases were decided under the DNA (2003, 2011 Repl.Vol., Supp.), Collection Act. Md.Code (“PS”).5 Act, Safety § Public Article This seq. 2-501 et upon King, which the relied mandates collection for certain crimes and persons all arrested contains 2-504(a)(3); §§ on of that 2- clear restrictions use DNA. PS 505(b)(2). it Not does restrict such collection those arrested, but it also that the DNA be removed from requires if also person the database is not convicted.6 The Act strictly directly restricts use of the DNA to “records that 2—505(b)(1). § relate to the identification of PS individuals^]” Significantly, authorizing there no statute such action is against persons who are not under arrest. King, undisputedly, Raynor Mr. was not arrested

Unlike subject and was not to the DNA Act. therefore Collection Thus, in examining Raynor’s rights, we deal with different involving markedly distinct from those paradigm, appli- rules 5. Discussed infra.

6. See PS 2-511 (requiring person’s profile § is removal of if she convicted). not State, v. Md. Maryland King,

cable v. Williamson (2010), below, similar As explained 993 A.2d 626 and cases. are a of with a diminished persons expectation arrestees class of The DNA Collection Act on this dimin- privacy. depends mandating ished collection of an arrestee’s DNA. citizens, its lesser interest in free who possess

Unlike rights, considerably full of constitutional the State has panoply learning identity interests in the true of an arrestee. weighty King Court enumerated five state interests advanced first, Act: “who identify the DNA Collection the need to tried”; second, to not being the need ensure the detainee does ”; third, staff facility create “inordinate ‘risks the need fourth, trial; persons ensure are available for the need to if posed society (by finding determine the threat crimes); fifth, possibility arrestee committed other freeing wrongfully imprisoned an innocent man his stead. at -, 1971-74, King, 569 U.S. 133 S.Ct. at 186 L.Ed.2d at omitted). (citations 22-24 applies Not one of those interests Raynor. By endorsing the action in this case a free against citizen, Majority considerably extends the opinion King beyond boundary holding what should be considered scope constitutional.7 The limited of the Court’s declared, "[s]olving 7. As Justice Scalia unsolved crimes is a noble objective, occupies place pantheon but it a lower in the American objectives protection people suspicionless noble than the of our prevail.” law-enforcement searches. The Fourth Amendment must -, 1958, 1989, Maryland King, 569 U.S. 133 S.Ct. 186 L.Ed.2d (Scalia, J., (2013) dissenting); Ry. see also Skinner v. Labor Execs. Ass’n, 1402, 1414, U.S. 103 L.Ed.2d J., (1989) (Marshall, dissenting) (reasoning part that searches as need for law enforcement” are not included in the narrow "normal searches). category upheld legitimate we of warrantless In Raines as Act, expressly buccal swab of an inmate under the DNA Collection distinguished grounds on two cases that failed reasonableness test only government general evidence-gathering: that the interest was Edmond[, Additionally, [City Indianapolis v.] both (2000)] Ferguson City S.Ct. 148 L.Ed.2d 333 Charles- [v. ton, (2001)] 532 U.S. 149 L.Ed.2d 205 are concluding Court’s High revealed holding King paragraph: by supported arrest the context of a valid light were expectations respondent’s cause

probable of a brief swab of minor intrusion by offended not rise contrast, gives of arrest that same context By cheeks. not respondent in identifying interests significant state charges attached to his name can be proper so that the make justice system can so that the criminal but also these custody. Upon concerning pretrial informed decisions concludes that DNA identification considerations the Court considered a reasonable search that can be of arrestees is officers make booking procedure. routine When part of a to hold for a serious by probable an arrest cause supported be to the station to they bring suspect offense and taking analyzing and a cheek swab custody, detained is, fingerprinting photograph- DNA like the arrestee’s that is reasonable booking procedure ing, legitimate police Fourth Amendment. under the at -, 133 S.Ct. at 186 L.Ed.2d 32. in their police, no intent to authorize

High expressed Court stations, discretion, to invite free citizens to unfettered leave, to create a they collect their DNA when test the DNA Data profile and submit the visitor’s to the CODIS profile, base, against all the free citizen’s wishes. here, it, by I search

As see conducted one chair, Raynor’s DNA from the and a second search collecting See, e.g., States they profile. when tested it to create United (2d Cir.2007) (“There Amerson, is, however, 483 F.3d of priva- much more serious invasion potentially second Nicholas, recognized DNA Act. As we cy occasioned distinguishable two on their facts from the DNA collection context for First, Ferguson cases involved searches of reasons. Edmond suspicion, ordinary not incarcerated citizens without individualized Second, government primary purpose actions criminals. individuals, identify gather not to but to evidence in those cases was crimes, acting general thus like a warrant. 21-22, 31. 383 Md. at 857 A.2d. at

102 ‘analysis and maintenance of in information’ [offenders’] CODIS, is, itself, in significant the federal database intru- sion. We are mindful of the vast of sensitive informa- amount tion that can from a person’s very be mined DNA and the strong privacy that all interests individuals have this infor- (2d Goord, 652, mation.” Nicholas v. (quoting 430 F.3d 670 Cir.2005))); also v. Kaipio, see Mario W. 230 Ariz. (Ariz.2012) (“This 281 P.3d second search presents greater privacy concern than the buccal swab it because (and subsequent publication involves extraction to law nationwide) enforcement of thirteen markers from the arrestee’s sample profile that create a DNA effectively individual.”). to that unique Alternatively, these two searches be seen two may parts single as of a search.

Without an statute with authorizing defined limitations on DNA, use of the the Majority opinion, under have unfettered choice bring as to who to into the station for non- permissive testing, DNA collection and thus for allowing arbi- trary decisions. Without the restrictions the DNA Collec- Act, tion ability State also has the to retain a private DNA, citizen’s to be mined future for years, whatever Amerson, purposes 85; it desires. See 483 F.3d at United Kincade, (9th Cir.2004) (Reinhardt, States v. 379 F.3d (“[A]ll J., risk, dissenting) Americans will be at sooner rather later, than having samples our DNA on permanently placed worse, file in federal cyberspace, and even perhaps being subjected governmental to various other programs providing suspicionless for searches for law pur- conducted enforcement poses.”). Supreme King emphasized Court the DNA

Collection Act mandated DNA be collected from all crimes, persons arrested certain and the Court considered it material that the officers had no discretion to decide whose at -, King, would be taken. See U.S. 133 S.Ct. 1969-70, 186 L.Ed.2d at 20-21. In all of the DNA collection cases parties, government’s discussed right hinged collect the DNA on the individual of a being part See, group, diminished status such as an e.g., King, arrestee. -, (arrestee); 186 L.Ed.2d (3d Cir.2011) (arres- Mitchell, United States 652 F.3d 387 Williamson, (2010) tee); (arrestee); 413 Md. A.2d 626 (2004) (incarcerated Raines, State v. 383 Md. 857 A.2d 19 indicated, cases, primary As I each of these person). was once the government person interest established Here, linchpin or arrestee. that critical became detainee glaringly absent. Privacy

Nature Interest In DNA And Of Privacy

Court Protection Of DNA, privacy Raynor sought protect, The interest to his is immensely personal private, and deserves the staunchest protection under the Fourth Amendment. DNA has the to reveal amounts of potential private enormous information person. today’s technology, about a With scientists have the traits, tendencies, power propen discern behavioral delects, sity private to suffer disease or other medical informa Williamson, tion, 564, possibly more. 413 Md. at 993 Ass’n, Ry. A.2d at 652.8 v. Labor Execs. Skinner U.S. Cf. (1989) (“It 1402, 1413, 639, 109 S.Ct. 103 L.Ed.2d however, urine, is not disputed, analysis that chemical of like blood, that of can private reveal host of medical facts about employee, whether including epileptic, preg he or she is diabetic.”). nant, Raynor or explicitly police acquisi refused DNA, tion of his and such of privacy right assertion protection. deserved His presence the station and his objection distinguish also action here from finding person, DNA some unidentified which has some being investigated. Majority, connection to a crime The though, refusing Raynor’s to treat the collection of from the chair as a for Fourth purposes search Amendment thus,] genome, 8. DNA contains “an entire [and individual's tissue most, samples government privacy retained threaten interests the yet they computer profiles receive less attention than the contained Joh, Reclaiming within DNA databases.” Elizabeth E. “Abandoned” Privacy, DNA: The Fourth Amendment and Genetic 100 Nw. U.L.Rev. 857, (2006). “concession,” eye turns a blind to this based on counsel’s important consideration. recognized the existence repeatedly Court has con outside of the Fourth Amendment privacy protection

text, bodily privacy right person and the particularly of life. aspects information about himself and intimate control Texas, 2472, v. See Lawrence 539 U.S. 123 S.Ct. (2003) (striking against sodomy down law be L.Ed.2d 508 Wade, Roe v. grounds); on consenting privacy tween adults (1973) (constitution 705, 35 L.Ed.2d 147 410 U.S. 93 S.Ct. involving decision termination right privacy encompasses al Connecticut, v. Griswold pregnancy); (constitutional (1965) right 14 L.Ed.2d 510 If for the contraceptives). required use of a warrant is secured in one’s kept to see the intimate details personal home,9 to seize the same logically required then a warrant is See Stepha inside of an individual. information locked private Sacrificing Noronha, Comment, Maryland King: nie B. Database, Up Fourth Amendment to Build 73 Md. (2014) King that the (arguing reasoning L.Rev. it that question: why privacy, the Court finds “begs autonomy within the four walls of the home secrecy, and body does not hold intrusion into the human paramount, but (Footnote omitted)). as of a standard?” high Privacy Rights Recent Federal Cases On Physical Invasion Even Without technology cloud and collect- ongoing regarding debate that can depicts data the tremendous intrusions ing intangible decision United In its physical occur without a invasion. Davis, (4th 226, Cir.2012), States v. the Fourth 690 F.3d on an individual’s Fourth police trampling Circuit warned sample when the collected a DNA rights Amendment profile and created a without pants from the defendant’s States, L.Ed.2d Kyllo 121 S.Ct. 9. See v. United (2001) gather (using imaging information about thermal device to search). constitutes heat in home’s interior cause, probable resulting in an unreasonable search. The judicial court reasoned that the absence of a approve officer to or deny the use of an individual’s DNA accords power unchecked that can be arbitrarily. exercised See id. at 249-50.

Less than three ago, months a case involving different Davis, Mr. the Eleventh Circuit held that government’s collection of electronic location information from the defen- dant’s cell phone provider, cause, service probable without resulted in a violation of the defendant’s Fourth Amendment protections. Davis, See United States v. 754 F.3d 1216- (11th Cir.2014). The Eleventh rejected Circuit the govern- ment’s abandonment and lack physical justifi- intrusiveness cations, agreeing with the proposition that phone when cell call, user receives a he voluntarily does not expose anything, even though the location of phone his cell automatically traced. Id. at 1217. The dual Davis support cases the notion that an individual’s informational privacy protected should be Amendment, the Fourth even without physical intrusion. Court,

More importantly, on June issued its unanimous decision in Riley California, holding that, arrest, even after a lawful could not seize data from a cell phone possession arrestee’s without a warrant because of personal the wealth of private infor — there, mation stored including calls made and received. U.S. -, (2014). 189 L.Ed.2d 430 As Chief Justice Roberts wrote for the Court: “[a]n Internet search browsing history, for example, can be found on an Inter net-enabled phone and could reveal an private individual’s interests or concerns—perhaps a search for certain symptoms — disease, coupled frequent with visits to WebMD.” U.S. at -, 134 S.Ct. at Thus, 189 L.Ed.2d at -. Supreme Court has taken another important step in recogni tion personal information not tied to a physical intrusion. Majority’s

Flaws In Reasoning Majority The opinion discounts the large amounts of highly personal details that DNA grounds here, reveals on the IAs for identification. profile DNA only used the

State claim earlier, sidesteps Raynor’s also Majority the indicated seizing upon by interests of his protection for during argument. oral counsel made that defense “concession” (i) counsel at oral like this: defense Majority’s logic goes DNA off the for to take the “okay” police it said was argument station, to the scientific objecting only in the police chair (ii) possession took legitimately therefore the testing; without, (in) search; only testing and the DNA of identification. purposes DNA for junk was of the performed 758-59, 81-82, 84-86, A.3d at 760-61. Maj. atOp. First, we respects. in several is flawed reasoning This issues on constitutional based important decide should not matters Unlike argument. counsel at oral by made statement regarding fact, by stipulations counsels’ are not bound we said, Court Kentucky Supreme As the legal principles. not allowed to determine will be parties “[stipulations or constitutional involving matters of the court on the decision interest.” public matters of construction or other statutory Nunn, 452 S.W.2d v. Breckinridge ex rel. Com. DNA for Second, Raynor’s did not test (Ky.1970). full well who he was. already knew they identification because none of And, arresting Raynor, not they were because attendant other concerns safety interests State’s Third, collection arose. DNA incarcerated identity persons technology is infancy stage, is still its testing Thus, to believe it is not unreasonable constantly improving. informa obtaining useful capacity government’s that the and will expand significantly, will “junk” DNA tion in the details enlarged personal discovery involve limits on either placing is no statute future.10 As there long recognized potential misuse as foreseeable have 10. Federal courts year: warning Maryland King last Justice Scalia’s before currently implemented involves Although as the DNA collection any physical or mental with known junk that is not associated characteristics, day being made discoveries are "new name—regions underlying junk assumption DNA’s challenge the core may genic all.” thought junk DNA’ be after previously to be 107 length may of time the DNA be retained or the uses to which may put, it be free to test the DNA using State only today. we can techniques imagine scientific Majority’s limited-use-of-information rationale is also v. Kyllo rulings inconsistent with the Court’s States11 and Skinner v. Labor Railway United Executives’ cases, potential the mere for intrusion Association.12 those privacy. Kyllo v. on information an created States, 27, 38, 2038, 2045, United 121 533 U.S. S.Ct. 150 (2001) 94, 104 (“Limiting prohibition L.Ed.2d of thermal imaging to ‘intimate details’ would not be wrong impractical it would be principle; application, failing to ‘a provide workable accommodation between the needs of law by enforcement and the interests protected Fourth ” (citation omitted)); Skinner, 617, 489

Amendment^]’ U.S. at (“It 1413, S.Ct. at 109 103 L.Ed.2d. at 659 is not disputed, however, analysis urine, blood, that chemical like that of can a reveal host of medical private employee, facts about including she is epileptic, whether he or or pregnant, diabet- Kincade, [813,] [(9th Cir.2004)] [United States 379 F.3d v.] 850 (Reinhardt, J., Therefore, that, dissenting). agree we “[s]hould the 'junk uses put to which can be DNA' be shown in the future to be significantly greater today suggests, than the record before us reconsideration of the reasonableness balance struck would be neces- Amerson, [73,] sary.” [(2d [United v.] States 483 85 n. F.3d 13 Cir.2007) ]. Weikert, 1, (1st Cir.2007); v. United States 504 F.3d 13 see also United Davis, 630, (D.Md.2009) (''[T]here F.Supp.2d States 657 662 are significant privacy implicated by interests the maintenance of one’s database, profile government beyond impli- above and those testing comparison profile cated of one’s DNA to evidence single, specific permitted crime. Were law enforcement profiles include individuals’ DNA in searchable databases under these circumstances, open population-wide it would ‘a backdoor to data ” (citation omitted)).

banking.’ States, 2038, 27, Kyllo v. United 533 U.S. 121 150 S.Ct. L.Ed.2d 94 11. (2001). Ass’n, Ry. 1402, 12. Skinner v. Labor Execs. 489 U.S. 109 S.Ct. 1413, (1989) (finding 103 L.Ed.2d 660 it “clear that the collection testing upon expectations society urine intrudes reasonable”). long recognized has as ic.”). Scherr, Privacy E. & the See also Albert Genetic DNA Har- Surreptitious Unregulated Fourth Amendment: (2013). L.Rev. vesting, Ga. ques

The lack intrusion should not resolve physical The Supreme there was a search. Court has tion whether that an and a violation of the Fourth repeatedly held intrusion crossing physical can occur without boundaries. Amendment L.Ed.2d Kyllo, U.S. 121 S.Ct. See (thermal Katz, 507, 19 imaging); away Harlan’s test moves (wiretap). L.Ed.2d 576 Justice interests, and rejected from strict Katz the property-rights for a Fourth Amendment violation trespass, holding need that a violating privacy physical can occur without by person’s Katz, 353, 512, 389 at at 19 intrusion. See U.S. 88 S.Ct. light today’s technology, at cutting-edge L.Ed.2d 583. DNA, here, the test gathering Raynor’s under circumstances submitting to and it to the CODIS ing profile, create not be as less intrusive a any database should considered than results a cheek search and seizure that which swab. it practical The result is the same and should be seen what and significant body permanent it is: a search into the seizure person’s of a information.13 private means, approval police procedure The of such Majority’s essence, keep profile to her DNA person desiring that her affairs in a public hermetically- must conduct private, Moreover, likely the will Majority opinion sealed hazmat suit.14 1431, Skinner, 650, at at at 13. See 103 L.Ed.2d 681 (Marshall, J., dissenting) by erroneously deriding ("Only as 'minimal’ stake, uncritically dignity inflating and the interests at likely testing program, majority efficacy of the FRA's strike does 728, 721, balance.”); Mississippi, Davis 394 89 a different U.S. S.Ct. (1969) (noting fingerprinting 22 L.Ed.2d that charge youth[s] releasing rapist them as find a without a tool to intrusive, protec- minimally was but violated their Fourth Amendment officer”). by judicial tions because it was "not authorized vote, holding person longer Majority’s 14. The that a can no means license, participate jury, opening up or obtain in a a driver’s without genetic material for state collection and codification. Unlike DNA left restaurant, park person all or a these are instances where has consequence many have the be people go will reluctant station voluntarily provide information about too, crimes for that they, fear will be added to the CODIS database. argues any any public State DNA shed in area

unprotected, an that goes averment too far. The Fourth protects person Amendment what a to preserve “seeks as Katz, private, an public.” even area accessible to U.S. at S.Ct. at at L.Ed.2d 582. In United Davis, States v. the Eleventh Circuit declared that the defen dant had voluntarily “not disclosed his site infor cell location mation to provider in such a as fashion to lose his expectation reasonable 754 F.3d 1217. I privacy.” strongly that a person’s submit DNA deserves at as least much protection as one’s whereabouts based on cell phone data. The State concedes that did not Raynor volitionally on leave his DNA the arms the chair in the station. Therefore, still he retains privacy in his intimate personal genetic make-up.15 Approach

A New For DNA Raynor’s argues counsel that the Fourth re- Amendment quires approach a new that takes into account the advanced technology that allows harvesting collection and without inva- sion, and knowledge recent that we shed DNA we everywhere go each throughout day. agree I propose and that treat we the zone of privacy not in of Raynor’s physical terms DNA in sweat, the form of or saliva his expectation but of privacy exposure of the results of scientific performed tests on his DNA. government

identified authority. troubling himself All these are consequences the today. Court decision the makes 15. Of privacy rights course the individual’s yield in DNA to his must the may investigate State's interests in that the State and collect and crime, analyze DNA found at or near the scene of a or on or near weapon, however, mean, or other means used commit to a crime. This does not context, police may gather that outside that the new DNA attempt from free citizens to find a DNAmatch.

Conclusion suspect an actual Raynor was not The concedes State tested, one and the was taken because at time DNA the him to to come that caused to ask of information piece claim, years after the two rape the was the victim’s station This crime, may a hunch he have been involved. that she had persons, identified other previously after had occurred she More- “persons interviewed as interest.” whom the DNA and over, give sample, specifically Raynor refused in the database. he not wish to be CODIS said that did of the Katz reason- circumstances, the balance Under these Here, the lacks dramatically. test shifts State ableness King that were government present interests weighty police possess arise cases. interests when earlier Such into person take to make an arrest and probable cause privacy. diminishing person’s expectation thus custody, in his hand, Raynor’s expectation other theOn he a free utmost because was protection deserves the traits of defining police questioning. time citizen informational, charac- personal dignitary, illustrate in other protect has come to that the Court teristics physical intrusion. There was a search contexts, even without Raynor’s one here, it an unreasonable that violated and was I would reverse rights. Constitutional Fourth Amendment and remand Special Appeals, of the Court of judgment the judgment with direction reverse to that court case court to County and direct the Court of Harford the Circuit grant Raynor’s suppress. motion me authorize to state HARRELL GREENE Judges join expressed views this dissent. they

Case Details

Case Name: Raynor v. State

Court Name: Court of Appeals of Maryland

Date Published: Aug 27, 2014

Citation: 99 A.3d 753

Docket Number: 69/12

Court Abbreviation: Md.