Spitting on the sidewalk is an abandonment of DNA / Man who was mistaken for another and handcuffed and then released when mistake was discovered could consent to search

(More to come later; I’m doing a CLE today, and I have to prepare.)

After police were unable to get DNA from a suspect to tie him to a rape of their mentally challenged daughter, the victim’s family hired a PI who followed the suspect for months. Finally, he saw him spit on the sidewalk, and he gathered the evidence and it was tested by the police linking the defendant to the crime. Spitting on a public street and making no effort to protect the sample from collection by others is an abandonment. Commonwealth v. Cabral, 69 Mass. App. Ct. 68, 866 N.E.2d 429 (2007).

Officers were looking for three Romanians, and two they knew for sure and the third they believe was one of them. After the arrest, they discovered their mistake of identity and released the third man. He was shortly asked for consent, and it was validly granted. The erroneous arrest and then release did not taint the consent under Hill v. California. Borta v. State, 957 So. 2d 1262 (Fla. App. 4th Dist. 2007):

Borta later moved to suppress all the evidence, claiming that all of it resulted from the initial seizure and handcuffing. The trial court denied the motion, holding that the initial handcuffing was a good faith mistake, that Borta had then been released from that seizure, and that his later consents to search were both valid. We agree.

In Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971), the Supreme Court held that when police have a warrant to arrest one person but mistakenly arrest another, the arrest is valid if the mistake was reasonable. Subjective good faith alone is not enough; the mistake would be reasonable if the surrounding facts and context made the identification of the suspect sufficiently probable. 401 U.S. at 804. Later the Court held that the reasonableness of the arrest depends on the totality of circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

The trial judge’s factual finding is supported by substantial competent evidence. The agents already had probable cause to arrest Panaipescu and Cerna. They had seen the man they believed was Panaipescu with another known suspect whom they recognized as part of the scheme and who lived in the same complex. They knew the three suspects had all been together in the same apartment, seeing the two leave. Under the circumstances the trial judge could determine that the identification of the third man, Panaipescu, was sufficiently probable. Their mistake was therefore reasonable under the circumstances.

Lack of visibility of back tag on car was cause for stop, and it did not dissipate when the officer walked right up to it (distinguishing cases), because of the excessive tint making the interior of the car invisible to him. United States v. Jackman, 2007 U.S. Dist. LEXIS 35231 (D. Utah May 14, 2007).*

Informants were classic citizen informants who were witnesses to crime, and they are entitled to more credibility as a result. Castella v. State, 2007 Fla. App. LEXIS 7480 (4th Dist. May 16, 2007).*