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Wednesday, November 24, 2010

Courts - "California ruling backs police use of DNA from discarded cigarette"

A story Tuesday in the Sacramento Bee, reported by Denny Welsh, begins:

In the first case of its kind in California, a state appellate court in Sacramento ruled Monday that a suspect in a criminal investigation has no expectation of privacy in a discarded item, and a DNA test of the item is not an unconstitutional search.

The court upheld the murder conviction of a man snared 15 years after the crime by results of DNA testing on a cigarette butt he tossed on a sidewalk.

Rolando N. Gallego's lawyer challenged the second-degree murder conviction in Sacramento Superior Court, contending his client's constitutional shield against warrantless searches was violated by a DNA test of saliva taken from the cigarette.

But a three-justice panel of the 3rd District Court of Appeal concluded that the test was for the sole purpose of identifying Gallego as a suspect in an ongoing homicide investigation, and "did not constitute a search under the Fourth Amendment. … (He) had no reasonable expectation of privacy in this discarded item."

Later in the long story:
On appeal, Gallego's court- appointed attorney, Ralph Goldsen, argued that no one reasonably expects the government to conduct "warrantless, suspicionless" testing of bodily fluids to generate a DNA profile containing "a wealth of private information, including medical conditions and familial relations."

The three appellate justices cited a 1988 U.S. Supreme Court opinion holding that defendants "possessed no reasonable expectation of privacy in trash bags they had left at the public curb," which contained incriminating evidence of narcotics trafficking.

Gallego's cigarette butt, like the trash bags, was left in a place "particularly suited for public inspection," the justices said in their 30-page opinion, quoting the high court. Both were "abandoned … in a public place," with "no reasonable expectation of privacy."

Goldsen, joined by American Civil Liberties Union attorney Michael Risher in an amicus brief filed with the appellate court, argued that the "concept of abandonment (is) inapplicable" because it presupposes a willful act. Gallego did not voluntarily expose his genetic profile to public view, they maintained.

As one commentator put it in a cited law review article:

"Depositing DNA in the ordinary course of life when drinking, sneezing, or shedding hair, dandruff, or other cells, differs from placing papers in a container on a street to be collected as garbage. Depositing paper in the trash is a volitional act. … Leaving a trail of DNA, however, is not a conscious activity."

The three appeal court justices did not buy it. They declared that Gallego "engaged in a conscious activity – indeed, an unlawful act of littering. … We do not face the situation of DNA being deposited in a truly non-volitional way of unconsciously shedding cells."

Here is the California 3rd Distrct COA ruling from 11/22/10 in the case of The People v. Rolando N. Gallego. It includes a number of citations.

How would this case be decided in Indiana?

You see this all the time on TV crime dramas, offering a suspect a can of coke, retrieving a discarded cigarette butt, putting the suspect in a hot room where he will sweat ....

Prof. Joel Schumm of IU-Indy Law had this comment re how Indiana courts would rule:

I'm not sure. The abandonment idea seems right to me, although I don't think an Indiana court has adopted it. I know sometimes prosecutors seek warrants, though.

On a somewhat related noted, I guess we're still waiting on the Indiana Supreme Court to rule in Garcia-Torres, which requires reasonable suspicion (and not probable cause) for a cheek swab.
Oral arguments were held Jan. 11, 2010 before the Supreme Court in Garcia-Torres. Since then, of course, Justice Boehm has retired.

Here is a list of all the ILB entries re Garcia-Torres.

Posted by Marcia Oddi on November 24, 2010 09:45 AM
Posted to Courts in general