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.


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