Raynor’s attorney, Byron Warnken, said the same reasoning should apply to his client.
“The amount of technology—chemical and computerized manipulation, amplification, and isolation—needed to obtain a DNA profile from raw bodily residue demonstrates that DNA profiles are in no way exposed to the public in a way that eliminates a free citizen’s reasonable expectation of privacy,” Warnken told (PDF) the justices in a petition. “Covertly collecting and analyzing involuntarily shed DNA is precisely a substitute for a physical trespass into Petitioner’s body. Involuntarily shed DNA is a tangible part of Petitioner’s person.”
But in 2013, the justices ruled in another genetic privacy case out of Maryland. By a 5-4 vote, the Supreme Court declared that the police may take a DNA sample from those they arrest. No warrants were needed.
“When officers make an arrest supported by probable cause to hold for a serious offense and 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,” Justice Anthony Kennedy wrote for the majority.
Warnken, however, said his client voluntarily went to meet the police and was not in custody when the authorities gathered his DNA. Instead, Warnken wrote, Raynor was a “free citizen” and the subject of a “surreptitious analysis of involuntarily shed DNA.”
Maryland prosecutors declined to submit opposing briefs to the Supreme Court.
So far, one friend-of-the-court brief has been filed—from the Electronic Frontier Foundation.
“As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be,” said Jennifer Lynch, a senior EFF staff attorney. “The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance.”