Byron L. Warnken said he is willing to take to the Supreme Court his argument that people who voluntarily submit to questioning in a police station do not relinquish their claim to the perspiration they leave behind on a chair.
Warnken, a criminal defense attorney and law professor, said he will ask the Maryland high court to reconsider its Aug. 27 decision in Raynor v. Maryland upholding a police examination of Glenn J. Raynor’s perspiration for his DNA. The DNA linked Raynor to a rape, for which he was convicted and sentenced to 100 years in prison.
If the Court of Appeals rejects his motion for reconsideration, Warnken said he will petition the Supreme Court to hear Raynor’s appeal.
Warnken would argue that the search by the Maryland State Police violated Raynor’s constitutional right against unreasonable searches. That argument would rely in part on the Supreme Court’s June 25 decision in Riley v. California that the Fourth Amendment requires police to have a warrant before searching the cellphones of people they arrest, said Warnken, who teaches criminal procedure at the University of Baltimore School of Law.
Warnken said he would tell the justices that by upholding the Court of Appeals’ 4-3 decision they would be saying, “An arrestee has more expectation of privacy in the content of his cell phone than a free citizen has in the contents of her DNA.”
Warnken is no stranger to the Supreme Court.
Eighteen years ago, he argued unsuccessfully that the Constitution prohibits police from ordering car passengers out of a vehicle the officers had lawfully stopped for speeding. The high court held 7-2 in Maryland v. Wilson that requiring passengers to leave the vehicle is permitted to achieve the government’s goal of protecting officer safety.
Warnken’s opponents at the high court on Dec. 11, 1996, were then-Maryland Attorney General J. Joseph Curran Jr. and then-U.S. Attorney General Janet Reno, who was pressing the Clinton administration’s support for the state’s position.
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The composition of the Supreme Court that day is depicted in the drawing that accompanies this post. The artist is Art Lien.