Can Police Use One's DNA in Saliva to Re-Arrest Someone?

Troy Thomas was a suspect in six unsolved residential burglaries from 2006 to 2008.  In five of the burglaries, genetic material from the suspect was collected at the home.  In the sixth burglary, an eyewitness identified Thomas as the burglar.
Condensed Version:  Arrested and Released for DUI?  Think Again – The Police May Have Your Saliva DNA to Legally Re-Arrest You.
In November, 2008, police identified Thomas as a suspect.  On December 1, 2008, police pulled over Thomas and claimed he seemed drunk.  So they asked him to submit to a roadside BAC test with a portable alcohol screening (PAS) device.  

Thomas was then released.  Police, however, kept the saliva Thomas left on the PAS device, tested it and tied his DNA to that collected at five or the six burglaries.  Thomas was then charged with all six residential burglaries under California Penal Code § 459, as a well as prior felony enhancements under Penal Code § 1170.12, 667 and 667.5.

Thomas responded by filing a motion to suppress the saliva evidence, arguing that the testing was an illegal search without a warrant.  Thomas further argued that it was improper for the police to keep the mouthpiece with the saliva when he consented to the test based upon an expectation that the mouthpiece would be discarded after the test, as it usually is.  In that regard, the police manipulated Thomas’ implied consent to a breath test, which is a requirement of having a California Drivers’ License, to obtain Thomas’ DNA in his saliva.  

The trial court denied Thomas’ motion to suppress.  Thomas then pled no contest to a single count of residential burglary and was sentenced to seventeen years in prison.

Defendant then appealed to the Second Appellate District, which affirmed the lower court’s ruling, but with more explanation.

The Appellate Court first pointed out that Thomas “abandoned any privacy interest in the saliva when he deposited it on the police device.”  Moreover, Thomas could have wiped off his saliva after the test or asked the police for the mouthpiece back after the test.  We think this justification for the abandonment rationale is strained and weak at best.

Yet the Court went further, attempting to analogize the search to other searches found proper in other contexts.  For example, another court held it was proper to test the DNA left on a cigarette butt tossed into a public street by a murder suspect.  It was also proper for police to test the DNA left on a soda can left behind by a suspect questioned at a police station.  Likewise, the U.S. Supreme Court has held that police may go through drug trafficking suspects’ trash left out on a curb for garbage collection.

Somewhat sarcastically, the Court even commented that Thomas could have asked the police what they planned on doing with his saliva covered mouthpiece, but he did not, so he waived any possessory interest in the saliva.

Lastly, the court refused to impose a new requirement that a suspect consent to abandonment, noting that to do so would create a duty on law enforcement to advise suspects of such rights and that this would be too burdensome in the often fast-paced speed of criminal investigations.

For more information about DNA issues, click on the following articles:
  1. State Appellate Court Rules That a Law Allowing Collection of DNA from an Arrestee Is Unconstitutional
  2. Federal Court Rules Collection of DNA from Felony Arrestee Constitutional
  3. U.S. Supreme Court Rules It Is Permissible to Take DNA Samples from Those Accused of a Serious Crime
For case summaries of selected cases our firm has handled, click here.

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