In the first case of its kind in California, a state appellate court in Sacramento ruled Monday that a suspect in a criminal investigation has no expectation of privacy in a discarded item, and a DNA test of the item is not an unconstitutional search.
The court upheld the murder conviction of a man snared 15 years after the crime by results of DNA testing on a cigarette butt he tossed on a sidewalk.
Rolando N. Gallego's lawyer challenged the second-degree murder conviction in Sacramento Superior Court, contending his client's constitutional shield against warrantless searches was violated by a DNA test of saliva taken from the cigarette.
But a three-justice panel of the 3rd District Court of Appeal concluded that the test was for the sole purpose of identifying Gallego as a suspect in an ongoing homicide investigation, and "did not constitute a search under the Fourth Amendment. … (He) had no reasonable expectation of privacy in this discarded item."
Gallego, 51, flipped the butt onto the sidewalk in 2006 in San Francisco, where he was then living. It was retrieved by two Sacramento County sheriff's detectives following him.
Based on a DNA profile extracted from the saliva, Gallego was arrested and in 2009, was found guilty by a jury in the brutal 1991 slaying of his 52-year-old aunt and godmother, Leticia Estores.
He was sentenced to 15 years to life in prison, plus an extra year for a deadly weapon enhancement stemming from the use of a kitchen knife to stab Estores in her Laguna West Way home.
While nothing was taken, prosecutors suggested that Gallego killed her because he believed she kept a sizable amount of cash in the house that could feed his uncontrolled gambling urge.
Gallego had been one of a few "persons of interest" at the time of the killing, but the primary evidence was not developed until 2006, when DNA other than the victim's but possibly a male relative's was discovered on a bloody towel that had been collected at the crime scene. The profile from the cigarette butt matched the one from the towel.
The trial judge denied a defense motion to suppress the DNA evidence.
On appeal, Gallego's court- appointed attorney, Ralph Goldsen, argued that no one reasonably expects the government to conduct "warrantless, suspicionless" testing of bodily fluids to generate a DNA profile containing "a wealth of private information, including medical conditions and familial relations."
The three appellate justices cited a 1988 U.S. Supreme Court opinion holding that defendants "possessed no reasonable expectation of privacy in trash bags they had left at the public curb," which contained incriminating evidence of narcotics trafficking.
Gallego's cigarette butt, like the trash bags, was left in a place "particularly suited for public inspection," the justices said in their 30-page opinion, quoting the high court. Both were "abandoned … in a public place," with "no reasonable expectation of privacy."
Goldsen, joined by American Civil Liberties Union attorney Michael Risher in an amicus brief filed with the appellate court, argued that the "concept of abandonment (is) inapplicable" because it presupposes a willful act. Gallego did not voluntarily expose his genetic profile to public view, they maintained.
As one commentator put it in a cited law review article:
"Depositing DNA in the ordinary course of life when drinking, sneezing, or shedding hair, dandruff, or other cells, differs from placing papers in a container on a street to be collected as garbage. Depositing paper in the trash is a volitional act. … Leaving a trail of DNA, however, is not a conscious activity."
The three appeal court justices did not buy it. They declared that Gallego "engaged in a conscious activity – indeed, an unlawful act of littering. … We do not face the situation of DNA being deposited in a truly non-volitional way of unconsciously shedding cells."
The justices also adopted a part of Deputy Attorney General Daniel Bernstein's oral argument that "our society has become increasingly aware of the reach of DNA testing," which diminishes any privacy expectations.
What if the police lifted Gallego's fingerprint from the cigarette butt, the panel asked rhetorically in its opinion. Would he then be able to assert a Fourth Amendment challenge to fingerprint comparison? "No, he would not," the panel stated.
The published opinion was written by Associate Justice M. Kathleen Butz, with the concurrences of Acting Presiding Justice Vance W. Raye and Associate Justice Ronald B. Robie.
Goldsen was not available Monday to comment. But Risher said the emphasis the panel puts on the fact Gallego's saliva was tested only for identification is an element the California Supreme Court may want to review.
"On the one hand, they suggest more sophisticated testing may be unlawfully invasive, yet they say testing can be done without suspicion and without judicial review," Risher said. "How do you police something like that? How do we know that's all law enforcement will use a sample for once it goes into the government database?"
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