In a recent case of criminal law and procedure, we learned that, in specific cases, defendants do not have expectation of privacy in biological sample they provide for analysis; more specifically the case discusses privacy in saliva left on preliminary alcohol screening device. The sample was used for DNA testing and was ruled as not constituting a search; thus it does not invade defendant’s privacy.
Defendant was stopped for traffic violations. As a result to his bloodshot and watery eyes, defendant was asked to perform sobriety tests and consented to a PAS breath test where he placed his mouth over the plastic tip of the device and blew into it. Defendant passed all the tests and was let go.
That being said, defendant was a suspect in a series of burglaries where genetic material was collected from the crime scenes. Furthermore, a witness to one of the burglaries picked defendant’s photograph from a six-pack photographic line-up. Also, police received an anonymous tip about defendant which triggered placing him under surveillance.
After stopping him for traffic violation and collecting his saliva on the PAS device, police used the piece for DNA testing. The DNA profile derived from the testing linked defendant to some of the burglaries which results in a warrant to search his home, which resulted in additional evidence implicating defendant in the burglaries.
As a result, defendant was arrested and charged with multiple counts of first-degree burglaries and was sentenced to 17 years in prison, despite his attempt to suppress evidence, which was denied. Defendant adds that the police shouldn’t be allowed to obtain a DNA sample through “fraud and deceit.” But in this case, obtaining defendant’s DNA sample for use in this specific investigation was the result of obtaining a breath sample for suspecting that defendant was driving under the influent. Defendant didn’t attempt to challenge the finding that he voluntarily submitted to the PAS test; nor the legality of the traffic stop.
The Fourth Amendment protects against unreasonable searches and seizures. The definition of a search is if it “occurs only when a government activity intrudes on an individual’s reasonable expectation of privacy, measured by the individual’s subjective expectation of privacy in the item searched and society’s objective recognition of the reasonableness of the individual’s subjective expectation of privacy (Source: Daily Appellate Report.)
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