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Vol. 40 No. 6 November / December 2011
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Highlights of This Issue

Special Bulletin

  • Obtaining a DNA Sample From a Breath Test Mouthpiece After a DUI Stop Was Not a Fourth Amendment Search

United States Supreme Court

  • Selected Pending Cases: Search and Seizure; Interrogation; Identification Evidence; Disclosure of Evidence; Civil Liability

Federal and State Decisions

  • Arrest, Search and Seizure Issues: what constitutes a seizure; police opening car door; search warrants; probable cause; possession of child pornography; good faith; anal cavity search; x-rays; warrantless home entry; misdemeanors; exigent circumstances; hot pursuit; search incident to arrest; crotch area; stop and frisk; reasonable suspicion; anonymous tip; high crime area; pat-down search; ambulance search; traffic stops; unnecessary prolongation; consent
  • Interrogation Issues: Miranda: what constitutes custody; psychotic breakdown; reasonable person test; totality of circumstances; juveniles; social worker; acting as agent of police; invocation of rights; refusal to sign waiver form; right to counsel; no duty to tell defendant of counsel’s presence at stationhouse; effect of intoxication on waiver; voluntariness; use of deception; sting operation; effect of drugs; sleep deprivation and muscle relaxants; expert witness
  • Evidence; Trial Procedure Issues: surveillance cameras; admissibility of video; police monitoring of attorney-client conferences; police witness; impeaching officer on misconduct investigation
  • Civil Liability/Personnel Law: excessive force; tasers; qualified immunity; pointing gun at suspect; failure to protect domestic violence victims; duty to protect; reliance on police assurances; responsibility for suicide of detainee; police discipline; refusal to make false report


    Special Bulletin
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    Federal and State Decisions
    Annual Topic Digest/Full Copy Service
    Annual Index of Cases Reported
    2012 Renewal Form: Email Option

Special Bulletin

Special Bulletin: Obtaining a DNA Sample From a Preliminary Breath Test Mouthpiece After a DUI Stop Was Not a Fourth Amendment Search.
People v. Thomas, No. B228049 (Cal.App. 2011).

Defendant was a suspect in a series of residential burglaries. Genetic material was collected in five of these burglaries. A witness to a sixth burglary picked defendant’s photograph from a six-pack photographic line-up. Thereafter, police received an anonymous tip about defendant and placed him under surveillance. Later, he was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a preliminary alcohol screening device (PAS) that required him to place his mouth over the plastic tip of the PAS device and blow into it. He was let go after passing all tests, but instead of discarding the mouthpiece of the device, the police preserved it for DNA testing. The DNA profile derived from the mouthpiece linked defendant to two of the burglaries. A DNA sample obtained after defendant’s subsequent arrest matched genetic material recovered from five of the burglaries. Additional evidence implicating defendant in the burglaries was found when police searched his home pursuant to a warrant after his arrest.

The issue was whether the DNA sample obtained from the PAS device constituted an illegal search. The court ruled defendant had no right to privacy in the saliva obtained from the PAS device.

“The question is whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material. . . .”

“. . . [D]efendant in this case had no privacy right in the mouthpiece of the PAS device, which was provided by the police, and he abandoned any expectation of privacy in the saliva he deposited on this device when he failed to wipe it off. Whether defendant subjectively expected that the genetic material contained in his saliva would become known to the police is irrelevant since he deposited it on a police device and thus made it accessible to the police. The officer who administered the PAS test testified that used mouthpieces are normally discarded in the trash. Thus, any subjective expectation defendant may have had that his right to privacy would be preserved was unreasonable. . . .”

“Defendant adds that the police should not be allowed to obtain a DNA sample through ‘fraud and deceit.’ Courts have allowed the use of ruses to obtain DNA samples on objects in which a defendant has no legitimate right to privacy, so long as the ruses are not coercive. (See e.g. Commonwealth v. Ewing (2006) 67 Mass. App. Ct. 531 [854 N.E.2d 993, 1001] [offering defendant cigarettes and a straw during interrogation]; People v LaGuerre (2006) 29 A.D.3d 820 [815 N.Y.S.2d 211] [contriving soda tasting test].) Here, obtaining defendant’s DNA sample for use in a burglary investigation was incidental to obtaining a breath sample for the purpose of investigating a suspected crime of driving under the influence. . . . [D]efendant does not challenge the finding that he voluntarily submitted to the PAS test. Nor does he challenge the legality of the traffic stop. Defendant was not misled about the fact that he was dealing with the police in the context of a possible criminal investigation, or that he was providing a breath sample by placing his mouth on police equipment.

“We conclude that defendant has no legitimate privacy interest in the saliva he deposited on the mouthpiece of the PAS device. . . .”


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