Raynor v. Maryland: Shades of, or for, Privacy Invasions to Come
The recent decision of the Court of Appeals in Raynor v. Maryland, No. 69, September Term 2012, is laden with issues and potential issues bearing on the scope of individual privacy from state intrusion. Correctly or incorrectly, and depending on your viewpoint (for the reader’s personal sensitivities about privacy will likely affect his or her appraisal of the Court’s decision), the Court addressed some of these issues, missed at least acknowledging others, and left still others, appropriately, for another day.
In Raynor, the Petitioner – identified by a rape victim as a suspect based on her contact with him years before the crime and her knowledge that he was the previous owner of the house in which the rape occurred – had come voluntarily to the police station for an interview at the request of the police. During the interview, the police asked for permission to take a DNA swab from the Petitioner’s mouth, and he agreed, provided the police also agreed to destroy the DNA sample after it was tested. The police did not agree, and no sample was taken, but, shortly after Petitioner left the station, the police did swab the arms of the chair in which he had been seated. Test comparison of the DNA from the swab to DNA collected from the crime scene implicated Petitioner, and he was eventually convicted of first-degree rape.
In the trial court, Petitioner challenged his conviction on Fourth Amendment grounds, contending that the collection of his DNA from the chair in the police station constituted an unlawful search because it violated his expectation of privacy. The court rejected this argument, reasoning, as recounted by the Court of Appeals, that the collection of the DNA from the chair was no different than if the police had requested and the Petitioner had denied permission to take his photograph and, thereafter, a member of the public had provided the police a photograph of the Petitioner walking out of the police station. Slip op. at 6.
During oral argument in the Court of Appeals, Petitioner did not challenge the acquisition of his DNA as an unlawful search. He confined his challenge to arguing that testing the contents of his DNA constituted an intrusion and, therefore, a search in violation of the Fourth Amendment. The Court of Appeals, therefore, did not consider whether the testing implicated broader constitutional protections (in particular, protection of a privacy interest in the contents of one’s DNA) rather than just protection of the right to be free of unreasonable searches and seizures. Nor did it, therefore, have occasion to consider whether, even if federal constitutional protections were absent in the circumstances of the case, provisions of the Maryland Declaration of Rights provided the protections from searches or invasions of privacy that the facts presented.
The ability of science and technology forensically to link the individual and crime continues to advance. Identifying evidence has moved from physical appearance and fingerprints to microscopic examination and comparison of human hairs to, now, lie detectors and DNA. It is not unreasonable to hypothesize that the day will come when, by analyzing brainwaves obtained not through intrusive electrodes attached to the person but recorded as one walks down the street and without physical intrusion, the substantive content of one’s thoughts can be determined to some degree. Perhaps initially it will only be something as limited as, for example, ascertaining that one’s brainwave pattern is consistent with the brainwave pattern of an individual who has recently committed a violent crime, but it is not unreasonable to think (if one dares to think in this future world) that the day will come.
This hypothetical illustrates the difficult issues that forensics and technology will create for privacy, not just in the criminal-procedure context but also in the relationship between the individual and the state. There are two basic issue areas with respect to privacy for one’s physiological information: (1) to what extent may government have the privilege to acquire personal physiological data about an individual, including, for example, brainwaves and even brain wiring at the neuron level? and (2) assuming the power lawfully to acquire any sort of physiological data, is there any sort of physiological data that the government may not use for its otherwise legitimate purposes, such as criminal investigation and local, state, national or international security? In its formulation of the basic questions before it, the Court of Appeals in Raynor concurred in this basic construct, stating those issues as:
- Whether, under the Fourth Amendment . . . , a free citizen maintains an objectively reasonable expectation of privacy in the DNA found in genetic material involuntarily and unknowingly deposited through ordinary biological process?
- Whether, under the Fourth Amendment . . . , the determination of an individual’s expectation of privacy requires consideration of the privacy interest in the information obtained, and not just the privacy interest in the place in which it was found?
Personal privacy is protected in various ways under both the federal and state constitutions. With respect to the U.S. Constitution, it is recognized, to greater or lesser degrees, that the Fourth Amendment protects against unreasonable searches and seizures. The First Amendment protects freedom of thought and belief. The Fifth Amendment protects against compulsory disclosure of knowledge one holds about oneself that would be incriminating. The evidentiary rules of privilege protect against the compulsion of knowledge that, though not about oneself, is nevertheless personal to one’s interests, such as the spousal privilege (protecting the marital relationship), the doctor-patient privilege (protecting physicians’ and mental-health professionals’ ability to provide competent care), and the penitent privilege (protecting the clergy’s rendition of religious services). Ultimately, as Justice Douglas contended for a majority of the Supreme Court in Griswold v. Connecticut, 389 U.S. 475 (1965), “emanations” and “penumbras” of various rights explicit in the Constitution also create a privilege of privacy in the individual and, to some degree, a duty of privacy toward the individual in the state. Suffice it to say, therefore, that there are ample legal grounds to render issues of personal physiological privacy potentially legally relevant. How these issues are to be decided is one thing, but, importantly and preliminarily, it is important that the issues be expressly recognized and addressed.
Let’s take our brainwave hypothetical. The day will come when we will need to ask whether and when one has an expectation of privacy in the surveillance of one’s brainwaves. Once one’s brainwaves can be examined anywhere at any time, can there be an expectation of privacy in the acquisition of an individual’s brainwaves? In Raynor, the trial court’s answer with respect to DNA adumbrates a similar result for the acquisition of information about a person’s brainwaves. Brainwaves would not be protected from state acquisition because of the known ability to acquire brainwave information without intrusion, just like swabbing the arms of a chair for DNA. There would be no expectation of privacy in the non-physically intrusive acquisition of information about brainwaves. Isn’t there something troubling about this result, however, on a personal level?
It was unnecessary for the Court of Appeals to decide issues of privacy with respect to the acquisition of one’s DNA in public places, much less suggest anything about the acquisition of brainwave information, because the Raynor Petitioner eventually abandoned the issue in oral argument. When the issue is squarely presented, however, how should it be resolved? What if the next petitioner challenging the acquisition of the petitioner’s DNA contends that he or she had no idea that they were leaving their DNA around for the taking? Indeed, it is conceivable that the Petitioner in Raynor had no idea he was leaving his DNA on the arms of a chair in the police station where he was interviewed. Should expectations of privacy depend on what the populace in general knows or should know about the accessibility of one’s DNA, an empirical inquiry, or should the inquiry be normative, that is, regardless of the general public’s knowledge of the government’s facility in acquiring DNA (or, as in our hypothetical, one’s brainwaves), should state or federal constitutional limitations declare DNA or brainwaves off-limits as a normative matter? Is there, in this regard, a difference between the identifying or even non-identifying aspects of DNA information and the substantive content of one’s thoughts to be gleaned from brainwaves?
Suppose, instead, that we are dealing with questions in the second basic issue area, the state’s use of DNA or brainwaves it is free to acquire, if done so without physical intrusion or against the will of the subject. Here, it would seem, the inquiry should not be empirical but normative. If the inquiry were limited to the empirical, then, if one can have no empirically based expectation of privacy in the state’s acquisition of publicly spread DNA or publicly broadcast brainwaves, it is difficult to see how there could be any empirically based expectation of privacy in the use of DNA or brainwaves permissibly acquired. Indeed, treating the matter as one for empirical inquiry, the Court of Appeals in Raynor, at least with respect to identifying characteristics of DNA, rejected normative limitations, answering the question “whether the Petitioner had an ‘objectively’ reasonable privacy interest in the identifying characteristics of his DNA” in the negative. Slip Op. at 23 (relying on its decision in Williamson v. State, 413 Md. 521 (2010)). Yet there is something unsettling about this result, particularly when what could be involved in some future case are non-identifying aspects of DNA testing or the substantive content of thoughts revealed by brainwaves.
Empirical determinations of how DNA, brainwave information, or other physiological information about an individual is used – that is actual expectations – do not necessarily say anything about what should be the normative scope of state or federal constitutional protections of privacy with respect to that use. In this regard, the Raynor court confounded analysis of issues in the first basic issue area with issues in the second. It overlooked the normative dimension of questions regarding the state’s use of information about one’s DNA, prejudicing the analysis when it comes to something arguably much more personal and intrusive, as the use of information about brainwaves and what they might reveal about the substantive content of thought. Now it may be that whether we are talking about matters beyond identification through the use of DNA or about personal revelations by examination of brainwaves, the inquiry should be strictly empirical, that is, what one may empirically expect given the populace’s general knowledge of government’s ability to use the information. If that were so, however, the day will come when privacy is a thing of the past, because, empirically, privacy will no longer exist. It is not the objective here to provide argument one way or the other on the normative question. That question, however it is resolved, should be comprehensively resolved, rather than truncated by a failure to distinguish between and address both the empirical and normative aspects of the question or prejudiced by such failures with regard to the question’s precursors.
 Raynor is the second significant case involving DNA testing recently to come out of Maryland. In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court held that, under the Fourth Amendment, an involuntary cheek swab to collect DNA constituted a search but not an unreasonable – and, therefore, unlawful – one.
 See http://www.newsweek.com/emailing-your-brainwaves-future-communication-266155; http://www.newscientist.com/article/mg20427323.500-brain-scanners-can-tell-what-youre-thinking-about.html; http://www.nytimes.com/1995/03/07/science/how-brain-waves-can-fly-a-plane.html. See also http://www.scientificamerican.com/article/what-is-the-function-of-t-1997-12-22/.
 Presumably, the Court of Appeals did not consider privacy concerns beyond the Fourth Amendment in the case because the Petitioner confined his arguments to Fourth Amendment jurisprudence.