Saliva Left on Blood Alcohol Test Mouthpiece as “Abandoned” DNA?

Three weeks ago, I blogged about a Maryland case holding that a defendant had no reasonable expectation of privacy in his DNA left in a chair at the station house. Here’s a related decision: A new California case holding that a defendant “abandoned” his DNA, relinquishing his Fourth Amendment rights, left on a mouthpiece of a blood alcohol test. (Hat tip:

The case is People v. Thomas, and it involves a burglary suspect. A DNA sample of the burglar was found at the scene of the crime. Although the opinion downplays this, it seems the police were trailing the suspect and waiting for a moment to collect a DNA sample from him to find a match. They got the chance when the police had reason to think the suspect was driving drunk: The officer pulled over the suspect and he consented to a breath test. The officer was really interested in the DNA sample, not the alcohol test, however, so he kept the mouthpiece of the test for DNA testing instead of discarding it. A DNA test of the mouthpiece revealed a match. The California court held that the testing did not violate the Fourth Amendment:

[D]efendant in this case had no privacy right in the mouthpiece of the PAS device, which was provided by the police, and he abandoned any expectation of privacy in the saliva he deposited on this device when he failed to wipe it off. Whether defendant subjectively expected that the genetic material contained in his saliva would become known to the police is irrelevant since he deposited it on a police device and thus made it accessible to the police. The officer who administered the PAS test testified that used mouthpieces are normally discarded in the trash. Thus, any subjective expectation defendant may have had that his right to privacy would be preserved was unreasonable. (Cf. Greenwood, supra, 486 U.S. at p. 40 [no reasonable expectation of privacy in garbage made accessible to the public, including the police].)

Alternatively, defendant argues that, because he was not advised his saliva would be tested for DNA, he did not intend to relinquish any privacy interest in it when he consented to the PAS test. The trial court found that defendant voluntarily consented to the PAS test, but did not consent to DNA testing of the mouthpiece. Defendant does not challenge these findings. Rather, he seeks to impose on the doctrine of abandonment the requirement of knowing consent, contending that he could not validly waive the privacy right in his saliva without being advised that it would be genetically tested and attempting to circumscribe the doctrine of abandonment by the scope of his consent.

To this end, defendant analogizes his case to Ferguson v. City of Charleston (2001) 532 U.S. 67, 70-71 (Ferguson), where urine samples obtained from pregnant women in a state hospital were tested for drugs, and positive test results were turned over to the police. The respondents in Ferguson conceded that the tests were searches, and argued only that they were justified by consent or special needs. (Id. at p. 76 & fn. 9.) The majority in Ferguson assumed without deciding that the tests were done without the patients’ informed consent and concluded that the special needs exception to warrantless searches did not apply because of the involvement of law enforcement. (Id. at pp. 77 & fn. 11, 80-81.). Defendant argues that an attempt to apply an abandonment rationale under the facts of Ferguson “would have been laughed out of court.” Because the abandonment doctrine was not at issue in Ferguson, defendant’s argument runs counter to the axiom that a case cannot stand for a proposition not presented or decided in it. (See People v. Annin (2004) 117 Cal.App.4th 591, 606.)

Ferguson did not involve the situation presented here, where the defendant consented to give a breath sample and in the process deposited saliva on a police device. In cases where a driver consents to give a blood sample under a state’s implied consent law and the sample is afterwards genetically tested, some courts have concluded that the scope of the driver’s consent does not permit genetic testing, either because the driver expressly limited his consent or because the express statutory purpose for testing the blood sample is to ascertain the presence of alcohol or drugs in the blood. (See e.g. State v. Binner (1994) 131 Ore.App. 677, 682-683 [886 P.2d 1056, 1059] (Binner); State v. Gerace (1993) 210 Ga.App. 874, 875-876 [437 S.E.2d 862, 863] (Gerace) The Binner court went further to hold that the defendant’s limited consent indicated he did not intend to abandon his privacy rights in the blood sample. (Binner, at p. 682.) Unlike the blood samples in Binner and Gerace, the PAS breath sample in this case was used only to measure any blood alcohol in defendant’s body, a use consistent with the implied consent statute. (See Veh. Code, § 23612, subds. (h) & (i).) The saliva defendant deposited on the PAS device, in which defendant could claim no right to privacy, was a mere incident to the PAS test. It was not the material collected for the limited purpose of the implied consent statute, and its subsequent testing was not dependent on defendant’s express or implied consent.