Metropolitan News-Enterprise


Thursday, January 17, 2019


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Unlawfully Collected Evidence Need Not Be Suppressed—Court of Appeal

DNA Evidence Improperly Taken, Under Subsequently Erected Standards, Was Validly Admitted Under ‘Attenuation Doctrine,’ Opinion Declares


By a MetNews Staff Writer


It doesn’t matter that the nonconsensual taking of a suspect’s DNA sample in 2006 was unlawful, the Fourth District Court of Appeal has declared, because the man was lawfully ordered by a court three times since then to provide a sample and would inevitably have been linked to a 2008 robbery in the absence of the police transgression two years earlier.

The opinion, filed Tuesday, was written by Justice Eileen C. Moore of Div. Three. It affirms the robbery conviction of Daniel J. Marquez, who contended that the unlawful taking of a DNA sample during his booking in 2006 in connection to a drug offense (not leading to a charge) was in violation of the Fourth Amendment.

In a 2015 unpublished opinion, Moore delivered Div. Three’s first opinion in the case, affirming the judgment of conviction after deciding that the taking of the sample did not violate the Fourth Amendment. Marquez petitioned for review by the California Supreme Court which issued a “grant and hold” order.

After it decided the case of People v. Buza last year, it remanded Marquez to Div. Three to reconsider its decision in light of Buza. In that case, Justice Leondra R. Kruger wrote for the majority in approving the taking of a DNA sample from a person who is “validly arrested on ‘probable cause to hold for a serious offense’… as ‘part of a routine booking procedure.’ ”

‘Attenuation Doctrine’

Moore said in Tuesday’s opinion:

“[W]e now hold that the 2006 collection of Marquez’s DNA sample was unlawful under the Fourth Amendment; the prosecution failed to prove that Marquez was validly arrested or that his DNA was collected as part of a routine booking procedure. However, the trial court properly admitted the 2008 DNA evidence under a well-established exception to the exclusionary rule: the attenuation doctrine.”

She quoted the United States Supreme Court’s 2016 opinion in Utah v. Strieff as explaining:

“Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.’ ”

In the 1988 case of Murray v. United States, she recited, the nation’s high court said unlawfully collected evidence need be suppressed where the link to that evidence has become “so attenuated as to dissipate the taint.”

Three Factors

Under Utah, there are three tests for determining if the attenuation doctrine applies, Moore continued: “temporal proximity” between the search and the use of the fruits of it, “intervening circumstances,” and whether police misconduct was “flagrant.”

She noted that two years had passed from the time of the taking of the 2006 sample to its use by police in linking Marquez to a robbery. DNA evidence gathered at the crime scene in 2008 matched Marquez’s sample in the database—a “cold hit.”

A cheek swab was then consensually taken from Marquez, and it matched DNA found at the crime scene.

 Moore pointed to “intervening circumstances.” She explained that “between 2006 and 2008, Marquez had been arrested at least three times and had been ordered to submit to DNA testing on each occasion.”

No Duplicate Samples

In a footnote, she related:

“Despite the three court orders, Marquez did not ‘submit to’ further DNA testing until November 2008, when he was identified as a robbery suspect. According to the Attorney General, the Department of Justice had instructed local law enforcement agencies not to collect ‘duplicate’ DNA samples. However, this information was not before the trial court, and it does not affect our analysis.”

With respect to the conduct of police in 2006, Moore said:

“[W]hile the Attorney General concedes that the authorities were not statutorily authorized to collect Marquez’s DNA in 2006, there is nothing to indicate that they acted with an improper motive, or that they somehow obtained the DNA sample in an inappropriate manner.”

The jurist wrote:

“In sum, there was a substantial time break, as well as intervening circumstances and a lack of evidence concerning flagrant official misconduct.”

The case is People v. Marquez, 2019 S.O.S. 282.


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