Cal.2d: DNA left on a PBT mouthpiece was “abandoned”

Defendant was stopped for a suspected DUI and he was given a portable breath test. Police kept the mouthpiece and tested his saliva for DNA. As far as the defendant was concerned, the DNA was abandoned. His DNA linked him to burglaries. People v. Thomas, 200 Cal. App. 4th 338, 132 Cal. Rptr. 3d 714 (2d Dist. 2011):

The question is whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material. In Gallego, supra, 190 Cal.App.4th 388, a cigarette butt tossed by a murder suspect onto a sidewalk was collected and tested for DNA. The court concluded that the test did not constitute a search because the defendant could claim no privacy interest in the cigarette butt he had abandoned in a public place. (Id. at p. 395.) The court relied on California v. Greenwood (1988) 486 U.S. 35, 40-41 (Greenwood), where the United States Supreme Court found no reasonable expectation of privacy in garbage bags containing evidence of drug trafficking because the bags had been left at the curb for garbage collection. (Gallego, at p. 395.) The Gallego court analogized the DNA testing of the discarded cigarette butt to the lifting of fingerprints from discarded juice containers in People v. Ayala (2000) 24 Cal.4th 243, 278-279. (Gallego, at p. 398.)

The trial court similarly found that defendant had abandoned the mouthpiece of the PAS device because he did not ask the officers to give it to him after the PAS test was over or to tell him what they planned to do with it. Defendant argues that he could not have abandoned a part of a testing device supplied by the police; nor could he have abandoned the DNA he deposited on it unconsciously. The court in Gallego agreed that abandonment requires a voluntary and conscious act, but tossing a cigarette butt on the sidewalk was deemed to be such an act. (Gallego, supra, 190 Cal.App.4th at p. 395.) The out-of-state cases on which Gallego relied went further, finding no expectation of privacy where a defendant could claim no possessory or ownership right in the object on which the DNA was deposited. (Id. at p. 396). For instance, the defendant in Commonwealth v. Cabral (2007) 69 Mass.App.Ct. 68 [866 N.E.2d 429, 433] could not claim to have a reasonable expectation of privacy in saliva he spat on a public sidewalk. Similarly, in Commonwealth v. Perkins (2008) 450 Mass. 834 [883 N.E.2d 230, 238-240], the defendant, who had refused to give blood for DNA testing, was found not to have a reasonable expectation of privacy in a soda can from which he drank during an interrogation. The can was provided by the police, and the defendant knew he could not take it out of the interrogation room. (Id. at p. 240, accord Piro v. State (2008) 146 Idaho 86 [190 P.3d 905, 909-910] [no expectation of privacy in water bottle provided by police in interrogation room].) Alternatively, the defendant abandoned any privacy interest when he failed to clean the can. (Commonwealth v. Perkins, at p. 240.)