Cop uses straw from Taco Bell drink to get DNA sample

[Morbo]

http://sfgate.com/cgi-bin/article.cg...4/MN211425.DTL

IANAL, but reading this story makes me believe that this guy's rights HAVE to have been violated. Any attorneys want to chime in here?

[MrDeath]

Which rights in particular do you think have been violated?

[voguevixen]

What about the rights of the two women he raped?

Garbage is garbage. The cop had just as much right to that straw as anyone, or did you think he was going to carefully destroy it rather than just toss it into the trash when he was done?

[robby]

Originally posted by MrDeath
Which rights in particular do you think have been violated?

How about the 4th Amendment (U.S. Constitution)?

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The police officer in the article states:

"I waited until he was halfway done with his drink and then jumped up and said 'Oh you need a refill,"' Hanna said. "He had no clue I had even done it."

I am also not a lawyer, but it seems to me that the cop never even gave him a chance to dispose of the straw. She gave him the drink; therefore it was his property. She then took his straw without his permission. I would have less of a problem if the cop had waited until he disposed of it in the trash.

[robby]

Originally posted by voguevixen
What about the rights of the two women he raped?

This is probably more suited for GD, but whenever I hear a comment like this, I always think it's a loaded question. You can use such a statement to justify any violation of a suspect's rights. While I am not trying to justify the actions of a rapist, and this one ultimately confessed, we are supposed to presume that a person is innocent until proven guilty, right?

[Terminus Est]

How is this any different from picking up fingerprints?

[wevets]

Originally posted by robby
I am also not a lawyer, but it seems to me that the cop never even gave him a chance to dispose of the straw. She gave him the drink; therefore it was his property. She then took his straw without his permission. I would have less of a problem if the cop had waited until he disposed of it in the trash.

Well, she purchased the drink. It could be argued that the straw was still her property, and she was merely letting him use it. Then it would not be his to dispose of.

[Morbo]

"What about the rights of...."?! C'mon now, I can't believe I got that fashionable justification in this forum.

To clarify, I think the suspect was misled in this particular situation. Can the police offer to buy me a soda b/c I'm a "witness" in a murder case, then ask me for a refill and take the soda cup for samples, w/o my consent? Can they follow me around, waiting for me to spit, so they can rush over to the sidewalk and collect a DNA sample? Can they wait outside Burger King, then run inside and confiscate my empty Whopper bag?

That's what I mean by having his rights violated.

[Bricker]

A guilty plea waives all non-jurisdictional claims of error. By pleading guilty, Mr. Bradford waived his right to complain about the seizure of his straw.

He's also SOL, in my view, as to any post-conviction ineffective assistance of counsel claim.

Bradford's attorney, public defender Donald Barkemeyer, said he was prepared to fight the case on many different points, including the straw seizure, but that his client wanted to plead guilty to avoid the trial.

In order to prevail on an ineffective assistance of counsel claim, the petitioner must show (1) that his attorney's performance fell below an objctive standard of performance, and (2) that but for that failing, the result of the trial would likely have been different.

In this case, he can't get past the first prong of that test. He directed his attorney to avoid a trial, even though the attorney was prepared to challenge the seizure of the straw. Before accepting his plea, the court would have engaged in a lengthy colloquy with Mr. Bradford, ensuring that he understood exactly what rights he was waiving by pleading guilty. He has, in my view, very little chance now of withdrawing that plea.

The more general question, of course, is, "Could a similarly situated defendant successfully suppress evidence gained in a like manner?"

Probably. If the facts are as outlined in the linked article, then the overriding question is, "Is society prepared to recognize as reasonable a privacy interest in a straw used to drink a drink at Taco Bell?" My gut feel is no - he manifested no desire to keep his straw, and, although the article doesn't say, I'm willing to bet the second straw on the refill drink was just thrown away when he was done. Lookign at the totality of the circumstances, my guess is that there is no violation of the Fourth Amendment under these facts

Of course, I could be wrong. One thing is certain: Mr. Bradford waived any rights he had, so his rights weren't violated. The remedy for a violation of the Fourth Amendment is suppression of the evidence. Mr. Bradford chose not to ask for it.

- Rick

[MrDeath]

voguevixen: The rights of the two women are, although equally important, not the subject of this post (if you want them to be, please see Great Debates).

robby: How is the straw part of the suspect's "perso[n], houses, papers and effects"?

Originally posted by robby
She gave him the drink; therefore it was his property.

She bought the drink, and she let him drink it while she was with him. How is the drink his property? Without proof that he purchased it from her, I think a court would likely rule that he was using her property with her permission.

She then took his straw without his permission.

Even assuming that the drink was his property, the article does not contain enough information to establish that. Did the suspect protest the removal of the straw?

Originally posted by Dooku
Can the police offer to buy me a soda b/c I'm a "witness" in a murder case, then ask me for a refill and take the soda cup for samples, w/o my consent? Can they follow me around, waiting for me to spit, so they can rush over to the sidewalk and collect a DNA sample? Can they wait outside Burger King, then run inside and confiscate my empty Whopper bag?

Anyone can offer to buy you a soda for any reason they choose; it's a free country. If the soda cup belongs to them, they can do whatsoever they please with it, and you are just as free to clean it of anything you may have left on it. They cannot follow you around for no good reason, but if they happen to see you spit, they sure as shootin' can collect a DNA sample from it (if it's on public property). The answer to your last question is an unqualified "yes", although the verb "confiscate" is a little strong, unless Burger King really wants to keep it (at which point, yes, they would have to acquire a warrant).

[robby]

Originally posted by MrDeath
robby: How is the straw part of the suspect's "perso[n], houses, papers and effects"?

...She bought the drink, and she let him drink it while she was with him. How is the drink his property? Without proof that he purchased it from her, I think a court would likely rule that he was using her property with her permission.

You need not purchase an item for it to be considered your property, if it is freely given to you.

[anecdote] A friend of mine gave his girlfriend a quite expensive ring (NOT an engagement ring). When they broke up, he tried to get it back, but she refused to return it. He took her to small claims court, but lost the case. The judge said that "a gift was a gift" and that the ring was her property.[/anecdote]

In this case, I would be hard pressed to believe that the suspect was "using her property with her permission." Indeed, when you buy someone a drink, you are not "lending" it to them. You are giving it to them. When they are finished with the drink, do you expect them to return it to you? (By "it," I mean the drink itself, as well as any disposable container.)

In any event, if the drink was given to him, that makes it his property, and thus, part of his "effects."

I think the cop set up an elaborate scenario where she could swipe his straw without his knowledge. To be constitutionally valid, I believe that she should have asked the suspect for it, or waited for him to dispose of it.

[Qwisp]

I'm not sure what anyone is trying to prove here, but be reasonable. If he was guilty, I say nail him any way possible. If he was innocent the DNA would have shown it, and the cops and prosecutor wouldn't have had a case anyway.

[mmmiiikkkeee]

I saw a case where a suspected rapist was tailed to a bar, and a cop collected the guy's cigarette butts after he left, got the DNA sequence, and the guy was eventually nailed. So yeah, I think if they have a good reason, the cops can follow you around waiting for you to spit or leave some evidense behind.

[MrDeath]

Originally posted by Qwisp
If he was guilty, I say nail him any way possible.

If he was guilty, I say nail him any way the law permits. Due process is not there to help criminals get away with rape or murder, but to keep the police from crossing the line between justice and harrassment (and worse). Every time I see one of these guys getting off on a technicality, I think, "That's a bit sad, but it's the price we pay for not living in a police state."

Originally posted by robby
I think the cop set up an elaborate scenario where she could swipe his straw without his knowledge.

I agree with you that the whole deal was a setup (why else the officer in a Taco Bell uniform?). I don't think the straw, his or not, was swiped without his knowledge. The officer said, "Oh you need a refill". Presumably she was addressing the suspect, so the straw was not taken without his knowledge. Did the suspect protest, or say something like, "Hey, give me my drink back!"? Bricker's point is also well-taken; what did the suspect do with the straw on the refill? If he took it with him or cleaned it off before leaving, you have a valid beef. And if a judge agrees with you, it's another victory for due process and another police officer who will be much more aware of the line that is not to be crossed next time.

And that's the last I'm going to say on the subject, which is getting perilously close to the border with IMHO and GD, if not already past the checkpoint.

[breaknrun]

Originally posted by robby
I think the cop set up an elaborate scenario where she could swipe his straw without his knowledge.

I agree with you that the whole deal was a setup (why else the officer in a Taco Bell uniform?).

Your statement above is a little misleading so just to clarify: the officer doing the interviewing of the suspect was not in disguise. The straw was handed off to an undercover officer. I'm not sure if this changes the scenario any for you but the suspect must be aware that there may be some suspicion against him if he's being interviewed again after so long.
Another thing to point out. The straw is not being used to convict the man. The purpose of the straw evidence was to show justification for getting a search warrant so they could search the suspect's property which provided more certain evidence of the suspect's criminal actions.

The real question is, was the straw obtained illegally? This can't be answered because the case hasn't been tested. Everyone seems to agree that's it's a borderline situation. I'm sure it will be contested at some point and then we'll know the answer.

Bricker, I'm a little concerned that the suspect may have grounds for an appeal and get the conviction overturned. The article mentions something about ineffective counsel. This seems to me to be a good way to avoid conviction without having to deal with a sticky point of due process. Do you have any thoughts on this?

[Morbo]

Thanks everyone for your replies. This is why I love the SDMB - lively, informed discussions that do not get overly bogged down in personal feelings nor politics. (In GQ, anyway). ô¿ô

Note to self: do not commit a crime and then get the spits.

[DSYoungEsq]

To amplify on Bricker's already excellent summation, it should be noted that, had they waited until the straw was thrown away, they clearly could have taken the straw from the garbage (no privacy interest in public garbage). But, that would have allowed the defendant to complain that the evidence had been "tainted" by genetic material from something else thrown away at the same time, or already in the garbage.

But let's look at something similar and see if it is analogous. Suppose that the police use a pretext to obtain your wallet, then surruptitiously replace it with a fake? Would you be upset by this "seizure"? Of course you would; you have some privacy interest in the wallet, and would be unlikely to surrender it voluntarily knowing it would be searched.

Does this, then, extend to the straw? Given that the defendant would likely have discarded the straw after usage, I agree with Rick that it is doubtful there was an unconstitutional seizure of the straw.

[Bricker]

Originally posted by breaknrun
Bricker, I'm a little concerned that the suspect may have grounds for an appeal and get the conviction overturned. The article mentions something about ineffective counsel. This seems to me to be a good way to avoid conviction without having to deal with a sticky point of due process. Do you have any thoughts on this?

Yes, I do - and I mentioned them above.

In order to prevail on an ineffective assistance of counsel claim, the petitioner must show (1) that his attorney's performance fell below an objctive standard of performance, and (2) that but for that failing, the result of the trial would likely have been different.

In this case, he can't get past the first prong of that test. He directed his attorney to avoid a trial, even though the attorney was prepared to challenge the seizure of the straw. Before accepting his plea, the court would have engaged in a lengthy colloquy with Mr. Bradford, ensuring that he understood exactly what rights he was waiving by pleading guilty. He has, in my view, very little chance now of withdrawing that plea.

In rereading this, I think I leapt from "ineffective assistance of counsel" to "withdrawing the plea" in some sort of hyperspace, and I apologize for the lack of clarity. But the bottom line is that Bradford likely can't show his attorney's performance fell below an objective standard, since Bradford declined a trial even though his attorney wanted to contest the seizure of the straw.

Now, we can speculate that the actual facts are different than presented in the article. For example, if the attorney told Bradford, "Look - you better plead guilty, because that straw was legally seized and formed a valid basis for the warrant, so they gotcha dead to rights," then he might prevail on a claim of ineffective assistance. But that's mere speculation. The article presents the lawyer as telling Bradford he was prepared to fight, and Bradford choosing to avoid a trial by pleading guilty. Under those facts, he cannot win an ineffective assistance claim.

- Rick