It’s a brave new world out there
Those genealogists who, like The Legal Genealogist, use DNA testing as part of our family history research often have to answer questions from our cousins about the way their DNA test results can be used.
The truth is, except in really extraordinary cases where the crime is very serious and the police have no clues at all, the chances that the police are going to turn to genealogy DNA databanks are pretty slim.
Why? Because if the police have probable cause to believe that a crime has been committed and that you committed it, they can walk into any judge’s office in this country and get a search warrant that will let them pick you up, trot you down to the nearest medical facility, and take whatever blood or saliva they want for a DNA sample and they’ll use their own lab, not 23andMe or AncestryDNA, to do the tests they want.1
And if the police don’t want you to know they’re on to you, they can sneak a DNA sample. They could watch you smoke at a bar and collect the cigarette butts when you leave. They could set up a phony job interview and give you a bottle of water to drink or a piece of cake to eat (in one case they gave the suspect a bottle of water AND a piece of cake and got DNA samples from the bottle and the fork). They could even send you something in the mail and get a DNA sample from the saliva you use on the flap of the envelope when you return that “send this in to WIN!” form.2
They can even have you flat out refuse to take a DNA test of any kind … and test your DNA anyway. Don’t believe me? Then you need to know about the Raynor case.
Now before I go into the facts, I need to say that this case presents all the tensions that can possibly exist in a criminal case. On one hand, the Constitutional rights of all people to privacy and to be free of unreasonable searches and seizures. On the other hand, the rights of all people to know that the guilty will be found, prosecuted and put where they can’t hurt anyone again. It’s a tough balance, and one that may end up being decided by the U.S. Supreme Court.
The case began in the early morning hours of a day in April 2006, when a woman in Maryland abruptly awoke to terror. A pillow pressed to her face. An assailant whose face she never saw. Rape. Repeated rape.
After the assailant fled, she ran to a neighbor’s home and reported the assault to police. The rapist, she told police, was white, had a medium build and had an odd metallic body odor. And, at the scene of the crime, DNA samples were collected.
But the samples didn’t match anybody. Not in any police database. Not any of the people the victim told police could have been involved. During more than two years after the attack, “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.”3
Then in 2008 the victim gave the police one more name. The name of Glenn Raynor. He’d gone to school with the victim, was the prior owner of the home where the victim lived, he had the same basic build.
The police asked Raynor to come in for questioning. During a 30-minute interview at the stationhouse, they asked him for a DNA sample. He said no. He was not arrested and was allowed to leave the police station. But after he left the police swabbed down the chair where he’d been sitting, sent the swabs off for DNA analysis — and got a hit. They then used that evidence as the basis to ask for a search warrant and get a full DNA sample; testing proved it was a match.
Raynor moved to suppress the evidence, saying — in effect — human beings can’t move around in public without leaving DNA behind, and allowing the police to test it without a warrant is unconstitutional. The State argued that DNA when used solely for identification purposes wasn’t any different from fingerprints, and police don’t need a warrant to lift fingerprints from any public place.
Late last year, the Maryland Court of Appeals — the highest court in Maryland — came down on the side of the State in a 4-3 split of that seven-member court.
Writing for the majority, Chief Judge Mary Ellen Barbera agreed with the State’s argument that
(Raynor) 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 … Instead, those loci reveal only information related to a person’s identity. In this regard, … 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 the Fourth Amendment.4
The Court’s reference to the 13 loci is to the CODIS markers, the ones used by the Congressionally-authorized database supervised by the FBI that holds and reviews DNA profiles from crime scenes and arrestees and convicts.
The four members of the Court noted that the public should be aware that DNA can be left around whenever folks are out in public and that, even if people don’t know that, “the fact that one has not knowingly exposed to the public certain evidence does not, by itself, demonstrate a reasonable expectation of privacy in that evidence.”5 It wasn’t a search or a seizure, they said, because the police “did not seize genetic material from (Raynor), nor in any way search him for it, but rather, collected it from an object on which the material had been left.”6
The dissenting judges in the case, in an opinion written by Judge Sally D. Adkins, strongly disagreed. Raynor’s interest in his DNA, they concluded, “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.”7
The dissent warned that:
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. 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 (police) database.8
And, the dissent added in a footnote, the majority ruling had implication for exercising routine rights of citizenship: “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.”9
A petition has been filed asking the United States Supreme Court to hear a challenge to the Maryland court’s ruling.[10. See Byron Warnken, “Raynor v. Maryland – An Update and the Cert Petition,” Warnken LLC Attorneys at Law blog, posted 22 Jan 2015 (http://www.warnkenlaw.com/news/ : accessed 7 Feb 2015). Whether the Court will choose to get involved is anybody’s guess.
So when that cousin asks you, once again, whether his genetic genealogy test can be used by the police, remind him, once again, that the police don’t particularly want it — and they don’t need it.
First, the tests we take for genealogy aren’t all that useful to the police. Our tests tell us how we are like other people — other family members who share common ancestors with us. The CODIS markers focus on parts of the DNA that make us unlike other people and set us apart as individuals.
And, second, if the police want our DNA, they will get it.
Even if we say no.
It’s a brave new world out there…
- See, for example, United States v. Allen, 631 F.3d 164, 167-168 (4th Cir. 2011) (“Baltimore and federal authorities sought and obtained … the … warrant (that) authorized the collection of Allen’s DNA”). ↩
- The Office of the Denver District Attorney has the facts of some of these cases online. “Fourth Amendment DNA Cases,” DenverDA (http://www.denverda.org/ : accessed 7 Feb 2015). ↩
- Raynor v. State, 440 Md. 71, 76 (2014). ↩
- Raynor v. State, 440 Md. at 85. ↩
- Ibid. at 94-95. ↩
- Ibid. at 96. ↩
- Ibid. at 108. ↩
- Ibid. at 108-109. ↩
- Ibid. at 108 n.14. ↩