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While the Supreme Court recently upheld the state’s right to take DNA upon arrest, attorney Byron Warnken argued, his client was not under arrest when his perspiration was swabbed without his knowledge or consent. ‘He was a regular free citizen,’ Warnken said. (The Daily Record/Maximilian Franz)

Man challenges conviction based on sweat police swabbed from his chair

ANNAPOLIS — The rape investigation was going into its third year when the victim suggested that the perpetrator might have been someone she knew.

The Maryland State Police asked the man to come to the barracks and answer a few questions, which he did, voluntarily. After he left, the police swabbed his chair for perspiration and had the swabs tested for DNA, which turned out to match DNA found at the crime scene.

Now, the sweat that helped convict Glenn J. Raynor is forming the basis of his appeal to the state’s highest court.

Arguing in the Court of Appeals Tuesday, Raynor’s attorney said people have a “reasonable expectation of privacy” in their perspiration, which they cannot control and always leave behind. Police violate the Fourth Amendment when they collect it and examine it without a search warrant, attorney Byron L. Warnken said.

“Everyone is leaving their DNA everywhere,” added Warnken, a private attorney and criminal-procedure professor at the University of Baltimore School of Law.

An attorney for the state, however, said people who voluntarily submit to questioning in a police station relinquish any claim to the sweat they leave there.

A DNA test on perspiration is merely a method to gather “identifying information,” much like collecting a fingerprint, Assistant Maryland Attorney General Robert K. Taylor Jr. said in urging the Court of Appeals to uphold Raynor’s rape conviction and 100-year prison sentence.

The case before the high court was reminiscent of the Supreme Court’s June 3 decision in Maryland v. King in which the justices upheld a Maryland law that permits police, without a warrant, to swab for DNA the inside cheeks of people arrested on charges of having committed a violent crime.

But unlike Alonzo Jay King Jr., Raynor had not been arrested when his perspiration was collected, Warnken told the high court.

Raynor did not have the “diminished expectation of privacy” that a person under arrest would have, Warnken argued. “He was a regular free citizen.”

Court of Appeals judges appeared to be as divided as the attorneys during the court session.

“None of us can help but shed material that contains DNA as we go about our lives,” Judge Glenn T. Harrell Jr. said in apparent support for Warnken’s argument.

Chief Judge Mary Ellen Barbera suggested that the police, having secured Raynor’s DNA sample, could have gotten a search warrant before testing it.

Involuntary shedding

According to court documents, the rape had occurred in April 2006. More than two years later, the victim suggested Raynor could be the perpetrator, according to court documents.

She and Raynor had gone to school together, knew the same people and he had at one time lived in the house where she was later raped, the victim told police.

Raynor voluntarily came to the barracks and answered questions in July 2008.

The forensic test of the perspiration he left behind on a chair was a match for DNA found on the victim’s pillowcase and patio, according to court documents.

In June 2009, Raynor was convicted in Harford County Circuit Court of first-degree rape and related charges. He was sentenced three months later to 100 years in prison.

The Court of Special Appeals upheld the DNA search, conviction and sentence in a reported opinion in September 2011, prompting Raynor to seek review by the Court of Appeals.

Pressing Raynor’s appeal, Warnken likened people’s right to privacy in their DNA to their right to privacy in their homes.

“I have a Fourth Amendment expectation of privacy in my person,” Warnken said. Raynor likewise had “a reasonable expectation of privacy in his genetic material, in his person,” the attorney added.

But Taylor said people have no greater expectation of privacy to their DNA than they do to their fingerprints or their face when they walk in front of a security camera, neither of which requires police to secure a search warrant.

“The Fourth Amendment does not prohibit that,” Taylor told the Court of Appeals. “Just because you don’t like something doesn’t make it unconstitutional.”

The Office of the Maryland Public Defender submitted a brief to the high court in support of Raynor’s position.

“The unintended consequences of a rule that the Fourth Amendment and Article 26 do not regulate the surreptitious collection, retention and distribution of involuntarily shed DNA for the purpose of investigating a person for past or future crimes will threaten the genetic privacy of all Marylanders,” the brief stated, referring to the Maryland Declaration of Rights article that prohibits unreasonable searches.

The Court of Appeals is expected to decide the case, Raynor v. Maryland, No. 69, September Term 2012, no later than Aug. 31.