Police used a ruse to get defendant to mail them an envelope so he would lick the envelope and leave DNA. The police posed as a law firm and wrote to defendant telling him that he was entitled to participate in a case, and he needed to provide some elemental information about himself. The DNA from his saliva linked him to a 22 year old rape and murder. The Washington Supreme Court, construing its broader state constitutional protection for “private affairs” found that the obtaining of the DNA was not unlawful. It was also argued that the police abused the process by holding themselves out as a ficticious law firm. Granting that the attorney-client privilege theoretically could apply, the court held that leaving DNA on the envelope was not a “communication” for purposes of the privilege. State v. Athan, 160 Wn.2d 354, 158 P.3d 27 (2007).<\/p>\n
A probation search extends to property and containers reasonably believed to be connected to the probationer. Also, those who live with probationers are subject to being searched, too, distinguishing Steagald<\/em>. State v. Walker, 215 Ariz. 91, 503 Ariz. P20 A probation search is authorized “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity.” Id.<\/em> The Ninth Circuit Court of Appeals has held the scope of a probation search extends to an item that the police have “reasonable suspicion … is owned, controlled, or possessed by probationer.” U.S. v. Davis<\/em>, 932 F.2d 752, 758 (9th Cir. 1991) (holding because officers had reasonable suspicion to believe a safe belonged to probationer, contents of the safe could be used as evidence against non-probationer who lived with probationer). In this case, based on the arrest warrant, Harkins had reasonable suspicion to believe that Gibbs violated the terms of her probation and was engaged in criminal activity, specifically drug use. This authorized the officer to conduct a probation search for contraband upon executing the arrest warrant for Gibbs. Moreover, the locked trunk in Gibbs’ home and her statement that she knew what was in it indicated that she owned, controlled or possessed the trunk, bringing it within the valid scope of a probation search. Thus, the search of Gibbs’ home and trunk constituted a valid probation search under the Fourth Amendment, and the evidence seized was lawfully obtained.<\/p>\n P21 We now address whether the evidence lawfully seized during a probation search of Gibbs can be used against Defendant, a non-probationer who cohabitated with her at the time of the search.<\/p>\n P22 “[W]here two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.” U.S. v. Matlock,<\/em> 415 U.S. 164, 172, n.4, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) (quoting Skally v. U.S.,<\/em> 347 U.S. 935, 74 S. Ct. 630, 98 L. Ed. 1086 (1954)); see also State v. Jones,<\/em> 185 Ariz. 471, 481, 917 P.2d 200, 210 (1996) (holding where owners had joint access or control over dining room closet where defendants’ clothes were found, they both had authority to consent). Additionally, when one allows a third party to use or control his property, he “assume[s] the risk” that the property will be seen by additional parties. Matlock,<\/em> 415 U.S. at 171 (citing Frazier v. Cupp<\/em>, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969)); see also People v. Pleasant,<\/em> 123 Cal. App. 4th 194, 19 Cal.Rptr. 3d 796, 798 (Cal. Ct. App. 2004) (“Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers”). (Citation omitted.)<\/p>\n P23 In this case, Harkins and his team were lawfully inside Gibbs’ and Defendant’s home pursuant to the arrest warrant for Gibbs and the authority of the probation search. During the initial cursory search to secure the residence, the officers noticed in plain view the gun and the drug paraphernalia in the bedroom. Also, because the trunk was in the living room, a common area, and because the officers were authorized to open the trunk under the rationale described above, the contents of the trunk were also properly seized against Defendant and the trial court did not err by denying his motion to suppress.<\/p><\/blockquote>\n To rely on inevitable discovery, the prosecution must litigate it and make a recond. The trial court erred in applying inevitable discovery to a search where the state did not argue it. Also, the facts did not support it because there was nothing apparent from the record that the police were on an independent investigation that would lead to the same result. State v. Alvey, 2007 UT App 161, 2007 Utah App. LEXIS 161 (May 10, 2007).<\/p>\n","protected":false},"excerpt":{"rendered":" b2evALnk.b2WPAutP Continue reading
\nAdv. Rep. 9, 158 P.3d 220 (2007):<\/p>\n