DNA Testing Of Discarded Cigarette Is Not Constitutionally Protected

By: Wallin & Klarich

The Third District Court of Appeals in Sacramento ruled in November 2010 that there is no expectation of privacy in a discarded item and that a DNA test of the item is not an unconstitutional search.

Rolando N. Gallego was convicted of second degree murder in great part due to the DNA testing of a cigarette that he allegedly threw away on a sidewalk. Police officers collected the cigarette and tested it for DNA.

Gallego was a person of interest in the investigation for the murder of his aunt and godmother, Leticia Estores, in 1991. The prosecution matched Gallego’s saliva to a bloody towel that had been collected at the scene of the crime which helped lead to his murder conviction.

Gallego’s lawyer challenged his client’s second-degree murder conviction, stating that his client’s constitutional right to a warrantless search was violated by the DNA test. However, the three-judge panel ruled that Gallego had no reasonable expectation to privacy in the discarded item and that the DNA test did not constitute a search under the Fourth Amendment.

According to court reports, the appellate justices cited a 1998 U.S. Supreme Court opinion California v. Greenwood, holding that defendants “possessed no reasonable expectation of privacy in trash bags they had left at the public curb which contained incriminating evidence of their narcotics trafficking” and that in regards to Gallego “the defendant voluntarily discarded his cigarette butt by tossing it onto a public sidewalk. That cigarette butt, like the trash bags in Greenwood was left in a place “particularly suited for public inspection”

The appellate court upheld Gallego’s conviction and he is serving a sentence of sixteen years to life in state prison
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Posted In: Criminal Defense