# DNA test on "discarded" breathilyzer mouthpiece needs no warrant **URL:** \ **Category:** Great Debates\ **Created:** [November 1, 2011, 3:07pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500 "2011-11-01T15:07:11Z")\ **Posts on this page:** 10\ **Page:** 4
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 2, 2011, 3:15pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/61 "2011-11-02T15:15:04Z")
> [@Bricker](#): > > I guess I’m having trouble picturing the record that developed at trial that supported this finding of fact. It seems to me that in ordinary interaction, if someone hands me a bottle of water and I’m halfway through it when our business concludes, I’d feel free to take it with me. That is, it seems like a very odd comment to make if the police said something like, “Hey, here’s a bottle of water for you… but remember, that bottle can’t leave the station!” > > What I had pictured was much more ordinary: police had subject the bottle, he drinks it, empties it, and throws it away… the requisite criteria for abandoning, to be sure, and with no need to conclude anything about what he knew or didn’t know about his freedom to take the bottle with him if he so chose. > > In contrast, the mouthpiece of a PSA device is not self-evidently something that you can or should take away with you. I think it’s fairly obvious that the police weren’t about to let the defendant take the water bottle/soda can out of the interrogation room, simply because they saved them for DNA testing. Had they not been thinking DNA testing, the stuff would have been discarded. In that sense, I see no difference between those and the PSA mouthguard. It’s clearly a much better analogy than the cigarette being dumped or the saliva being spit out. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [November 2, 2011, 4:27pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/62 "2011-11-02T16:27:10Z")
I agree the ruling is bad but I think for a different reason. DUI checkpoints, IIRC, must be random stops or at least non-targetted. This is one way that you get around 4th Amendment search problems. But the purpose of the stop must be limited to a check on your fitness to drive, absent compelling evidence to the contrary. Further, stops should be as short as possible so as to limit inconvenience of sober drivers. In other words, it would be unjustifiable to conduct background or criminal checks on every person stopped and, absent a guy saying “hey, you know I have jewelry in my trunk that I totally nabbed from a house the other day” you would be hard pressed to find a scenario where the cops would have reasonable suspicion to believe this guy was committing burglaries. In this case, where the cops knew who he was and specifically targetted him for DNA analysis, it’s even worse. At that point, I would argue that the initial procedures used were not for the purposes justified under the law. I would say that his breathilizer testing materials being used for DNA analysis of burglaries amounted to an unauthorized search and his stop was not random but targetted. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [November 2, 2011, 4:37pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/63 "2011-11-02T16:37:16Z")
> [@Enderw24](#): > > I agree the ruling is bad but I think for a different reason. > > DUI checkpoints, IIRC, must be random stops or at least non-targetted. This is one way that you get around 4th Amendment search problems. The defendant was not stopped at a DUI checkpoint. > [@](#): > > In this case, where the cops knew who he was and specifically targetted him for DNA analysis, it’s even worse. From the pdf file linked to in post #18: > [@](#): > > On December 1, 2008, he was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a PAS breath test that required him to place his mouth over the plastic tip of the PAS device and blow into it. I’m sure his lawyer would have argued that his being stopped was merely to get a DNA sample if that argument would have been compelling. It’s possible that the police didn’t know who he was until after he was pulled over for traffic violations and that they legitimately thought he showed signs of intoxication. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 2, 2011, 4:52pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/64 "2011-11-02T16:52:10Z")
I’m thinking of a corollary of this issue. What happens if it’s inside a prison and a prisoner is being given a flu shot. Could the needle that was used for the shot then be used for DNA testing? A prisoner would not be allowed to take the needle so he could dispose of it himself. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 2, 2011, 4:57pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/65 "2011-11-02T16:57:48Z")
> [@Enderw24](#): > > At that point, I would argue that the initial procedures used were not for the purposes justified under the law. I would say that his breathilizer testing materials being used for DNA analysis of burglaries amounted to an unauthorized search and his stop was not random but targetted. Whren v. US holds that pretext traffic stops (traffic stops that aren’t random, but targeted) will not result in the suppression of evidence. As long as there is an objective reason for the stop (traffic violation), the actual motive of the police won’t negate that. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [November 2, 2011, 7:31pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/66 "2011-11-02T19:31:09Z")
> [@Fear\_Itself](#): > > Cite that consent is required for a DNA test. How about the decision in the actual case we are discussing? The judge had to appeal to the discarded law. Why wouldn’t he have just said that consent is not required for DNA tests? Heck, why would this even be tested? > [@Fear\_Itself](#): > > It was not his property; they are not required to returm it, and the test procedure created no expectation that it would be returned to him. He voluntarily took the test. If he had anticipated the DNA test, perhaps he would not have consented. Once consent is given, he has no right to get the tube back, because the tube is never returned, whether the test is voluntary or mandatory. Again the decision disagrees. The entire argument that the test was legal relies on the fact that he discarded the mouthpiece. If it wasn’t his property, then he didn’t discard it. So I have one poster on a message board who may or may not be a lawyer, vs. everyone else, including former and active lawyers, plus the judges at the California court of appeals. I wonder which I should believe? ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [November 2, 2011, 11:45pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/67 "2011-11-02T23:45:27Z")
> [@BigT](#): > > How about the decision in the actual case we are discussing? The judge had to appeal to the discarded law. Why wouldn’t he have just said that consent is not required for DNA tests? Heck, why would this even be tested? > > Again the decision disagrees. The entire argument that the test was legal relies on the fact that he discarded the mouthpiece. If it wasn’t his property, then he didn’t discard it. > > So I have one poster on a message board who may or may not be a lawyer, vs. everyone else, including former and active lawyers, plus the judges at the California court of appeals. I wonder which I should believe? Trust the force Luke. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 3, 2011, 12:08am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/68 "2011-11-03T00:08:07Z")
> [@](#): > > Quoth **Hamlet** : > I think the more analogous argument isn’t to the clearly abandoned cigarette, but to the soda can/water bottle used in the interrogation (a point made in the opinion itself). > > When the police provided the defendant with a water bottle/soda can (two different cases) during an interrogation, the defendant knew that he was not going to get to leave with those items, and thus, he had no reasonable expectation of privacy in them. “The can was provided by the police, and the defendant knew he could not take it out of the interrogation room.” By leaving his saliva/DNA on the can/water bottle, he abandoned it. It seems to me that it would be just the opposite. If the suspect is allowed to take the bottle with him, but instead chooses to toss it in the trash can conveniently placed right next to the door, then he’s clearly abandoning it. But if he’s informed that he can’t take it with him, then he never had control over it, and was therefore not able to abandon it. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [November 4, 2011, 5:47pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/69 "2011-11-04T17:47:41Z")
> [@Chronos](#): > > It seems to me that it would be just the opposite. If the suspect is allowed to take the bottle with him, but instead chooses to toss it in the trash can conveniently placed right next to the door, then he’s clearly abandoning it. But if he’s informed that he can’t take it with him, then he never had control over it, and was therefore not able to abandon it. Fair point. Although I think there are some problems with the assumption you make, which is to have control over the object requires the ability to take the object with you. There are several facts which suggest the suspect had control over the item, such as choosing to reach out, grab the object with his hand, open it, and proceed to drink from the object. Repeat this a couple dozen times, as he continues to deplete the resource inside the object. (Even if he just drank once from it is enough). He could have crunched the can, dented it, manipulated it, etcetera. I think he had control over the can, despite the fact he had to leave it behind. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 4, 2011, 7:42pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/70 "2011-11-04T19:42:25Z")
The important point, though, is whether he had sufficient control that the decision to give it back was his to make. [Previous page](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500.md?page=3)