The article below is precisely what I was trying to explain about how easy it is once you leave your DNA in innocent places like a chewing gun spat out on the sidewalk for police to pick it up and place it at the murder scene and charge you with murder. Always, be careful not to spit your gum, cigarette butts, pop cans or other food items on the streets. Beware and be aware. I did this yesterday coming from the dentist when I spit a gauze out of my mouth with some blood on it on the sidewalk. I picked it up, consciencious as I was that I was leaving my DNA evidence on the street for anyone to come behind me and pick up and place it at any crime scene. If you think it could never happen, wait until it happens to you. Solution: don't even wrap chewed gum in foil paper. Swallow it or wait til you get home or somewhere where you can flush it down the toilet.
Abandoned Property
by Charles Gillingham
With the expansion of DNA
testing, cold-case investigations and prosecutions are becoming ever
more common. Arrest warrants issued for unknown suspects based upon
their DNA profile are also becoming more common. In Santa Clara,
California, a bank robbery suspect was charged based upon his DNA
profile gleaned from a mask he left behind at one of his crime scenes.
He later was arrested for domestic violence and his DNA profile was
matched to the mask used at the bank robbery. He was convicted and sent
to prison. The Los Angeles serial killer, "Grim Sleeper," was identified
using DNA left at his homicide scenes. Officers need to remember the
4th Amendment implications of property found at crime scenes and left
behind by suspects.
DNA FROM ABANDONED PROPERTY
Recently, a suspect who was a
person of interest in the death of his aunt and godmother complained
that he was the subject of an illegal search and seizure.
The victim was killed at home
in 1991. In 2006, a DNA profile was obtained from a towel left at the
crime scene. The defendant made inconsistent statements about his
whereabouts at the time of the murder, but in 1991 there was not enough
evidence to show the defendant was involved in the homicide. In 2006 the
suspect was again interviewed and gave another inconsistent statement
about his whereabouts at the time of the murder.
In 2006, a DNA test was
completed on a towel left at the crime scene. The DNA testing revealed a
male DNA profile that contained familial similarities with the victim.
This sparked renewed interest in the defendant.
Officers then followed the suspect. The officers collected a
cigarette butt on a public sidewalk after the suspect threw it on the
ground. The DNA from the cigarette matched one of the samples taken from
the crime scene. The defendant was convicted of the murder.
SEARCHES?
Remember, your activity as a
law enforcement officer constitutes a search for Fourth Amendment
purposes only if the person claiming an illegal search exhibits an
actual expectation of privacy and society recognizes that expectation as
reasonable.
Property abandoned in public
is afforded no protection from warrantless searches or inspections
because a person has no expectation of privacy in such places. For
instance, people possess no expectation of privacy in trash bags they
leave at the curb for pickup. Those trash bags can be examined without a
warrant.
A cigarette butt tossed on a
public sidewalk is like the trash bags placed in public. A suspect who
discards an item in a public place has no reasonable expectation of
privacy concerning any lab analysis done of that item. A soda can,
glass, cigarette but, spittle, chewing gum, and an envelope mailed to
detectives have all been found to be discarded property worthy of no
Fourth Amendment protection.
The Court here took pains to
point out that the DNA testing was done to identify the defendant as a
criminal suspect. Be mindful of the dictates of California Penal Code
section 295 which set forth the uses of DNA profiles. There will be no
constitutional issue or suppression issue with abandoned property which
is DNA tested provided that testing is done to identify a suspect in a
continuing investigation.
| American law, abandonment confers no right in a suspect to challenge the government's seizure of evidence without a search warrant. Under our constitutional law, the government generally needs a search warrant, but abandonment is one of the exceptions for which no warrant is needed. And this is a very effective law enforcement tool that makes it easy for them to do their job. I have a case now where the client, a boxer, was suspected of having committed bank robbery in 2009. An FBI agent did some background search on him, found out from Facebook he was a boxer in Toledo, Ohio, went to one of his boxing matches and lo and behold, he discarded a q-tip with blood on it from a bloody nose. Guess what . . . the agent took the bloody q-tip to the crime lab, compared it against DNA found on a face mask the suspect left at the scene and got a MATCH! Bam! He was charged and convicted. Facing a minimum of 20 years next month at sentencing. He could not even challenge the lawfulness of the agent's actions because he discarged the bloody q-tip in a trash can. Abandonment. Agent does not need a search warrant. Easy for them. |
Chuck Gillingham is a veteran prosecutor. He is also an instructor for the California District Attorneys' Association and for Santa Clara University School of Law. Please consult with your own legal counsel for precise guidance before applying any of the techniques or suggestions in this article.
[1] People v. Gallego, 2010 DJDAR 17632
[2] California v. Ciraulo (1986) 476 U.S. 207
[3] California v. Greenwood (1988) 486 U.S. 35
Roberto Guzman
Roberto Guzman
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