As the state's highest court upheld this week a Harford County rape conviction based on DNA collected from the arm of a police station chair, a veteran judge issued a stark warning about the consequences of the ruling.
"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," Judge Sally D. Adkins wrote in a dissenting opinion.
The rapist, Glenn Joseph Raynor, had challenged his conviction, arguing that police were wrong to swab his genetic material from the chair after he had refused to consent to giving a sample. But four judges of the Court of Appeals disagreed, ruling that police are free to scoop up DNA wherever they may come across it.
Raynor's attorney could not be reached for comment.
The case reflects the continuing debate in Maryland and across the nation about the use of DNA and other technology to solve crimes. Forensic and digital evidence can be powerfully persuasive at trial, but some privacy advocates worry that it could be abused — especially as the technology to analyze the information improves.
Writing for the majority in Raynor's case, Chief Judge Mary Ellen Barbera said the way police got Raynor's DNA and what they did with it is just like how they might have acted if they got his fingerprints.
"The police would have analyzed the fingerprints to reveal their identifying characteristics and compared them to any fingerprint evidence collected at the victim's home," she wrote. "The only distinction that reasonably can be drawn is that the DNA test results in the present case directly linked Petitioner not merely to the crime scene but also directly and with certainty to the rape of the victim."
But Adkins looked at the decision as giving police the unfettered ability to scoop up DNA and use it, and said people should be given better privacy protections over information that can be collected even without physically intruding on their body or property.
"The ongoing debate regarding cloud technology and collecting intangible data depicts the tremendous intrusions that can occur without a physical invasion," she wrote.
Adkins compared the issue to another battle over technology and crime fighting that is brewing over the use of cell tower location information. One federal appeals court has already required police to get a warrant before collecting that data; lawyers for two convicted Baltimore robbers are seeking a similar ruling.
"I strongly submit that a person's DNA deserves at least as much protection as one's whereabouts based on cell phone data," Adkins wrote.