Use of Drunk Driving Suspect’s DNA Not a Search

 

Monday, October 31, 2011

 

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Use of Drunk Driving Suspect’s DNA Not a Search, C.A. Says

 

By KENNETH OFGANG, Staff Writer

 

Police who used a drunk driving suspect’s DNA sample to tie him to a string of burglaries did not violate his right to be free from unreasonable searches and seizures, the Court of Appeal for this district ruled Friday.

Div. Four affirmed Troy Corsby Thomas’ conviction and 17-year sentence for residential burglary. Thomas pled no contest to a single burglary count under a plea agreement following the denial of his motion to suppress.

Prosecutors charged Thomas with six counts of residential burglary following a 2008 traffic stop. Evidence presented at the suppression hearing established that he consented to a breath test, and passed all sobriety tests and was released.

Mouthpiece Preserved

Police, however, preserved the mouthpiece of the testing device; testing of the mouthpiece linked Thomas—who had previously been placed under surveillance as a result of an anonymous tip and whose photograph was identified by a witness to a burglary—to two burglaries and led to his arrest.

Following the arrest, police obtained another DNA sample, which linked him to three more burglaries. They also obtained a warrant to search his home, finding additional evidence.

Based on the DNA evidence, and the photographic identification, Thomas was charged with six burglaries.

Appealing his conviction following the plea, he argued that Los Angeles Superior Court Judge Antonio Barreto Jr. should have suppressed the DNA and all resulting evidence. He argued that police violated his reasonable expectation of privacy in the saliva he deposited on the mouthpiece of the PAS breath testing device.

No Expectation

But Presiding Justice Norman Epstein agreed with the trial judge that Thomas had no such expectation of privacy because he did not ask the police to give him the mouthpiece and did not ask what they intended to do with it. The sample was voluntarily given, the jurist said, and its subsequent testing was not a search within the meaning of the Fourth Amendment.

The presiding justice cited People v. Gallego (2010) 190 Cal.App.4th 388, holding that a murder suspect lacked a reasonable expectation of privacy in a DNA sample obtained from a cigarette butt because the defendant had abandoned it by tossing it onto a sidewalk.

Thomas, Epstein said, similarly abandoned any reasonable expectation of privacy in his saliva “when he failed to wipe it off” the device. Instead, he left it on a device belonging to the police, and thereby made it accessible to them, rendering any privacy expectation unreasonable, the presiding justice wrote.

Epstein distinguished cases in other states holding that genetic testing of blood samples, given by drivers under implied consent laws similar to California’s, is not permitted. Those cases, the jurist explained, are based on the premise that testing exceeds the scope of the driver’s consent or the scope of the statute.

‘Mere Incident’

In Thomas’ case, however, the testing of his saliva was “a mere incident to the PAS test,” and was not dependent on express or implied consent, Epstein said. He added that this was not a case of “fraud and deceit,” as the defense contended, because Thomas took the test voluntarily, was lawfully stopped, and knew that he was dealing with the police and giving them a breath sample in connection with a possible criminal investigation.

Attorneys on appeal were Ralph H. Goldsen, by appointment, for the defendant and Deputy Attorneys General Susan Sullivan Pithey and Mary Sanchez for the prosecution.

The case is People v. Thomas, B228049.

 

Copyright 2011, Metropolitan News Company