A California appellate court (Second District, Division Four) has issued a decision that allows police to conduct DNA analysis on saliva taken from a PAS device (used during traffic stops to test for intoxication) without the defendant's knowledge or permission. In our view, this is an incorrect decision that violates people's expectation of privacy.
The case concerns Troy Thomas, who was suspected of being involved in several burglaries between 2006 and 2008. While under surveillance on December 1, 2008, Thomas was pulled over for suspicion of DUI. After passing a number of sobriety tests - including blowing into a PAS device - Thomas was allowed to go.
What Thomas did't know was that the officers kept the mouthpiece that Thomas had blown into and subjected it to DNA analysis. When Thomas's DNA profile was compared to DNA evidence obtained at some of the burglary scenes, two matches were found. Thomas was subsequently charged with six counts of first-degree residential burglary. He pled no contest to one count and - because of enhancements for prior felonies - received a state prison sentence of 17 years. He appealed on the basis that the police violated his right to privacy when they used his saliva from the PAS mouthpiece for DNA testing.
The appellate court's decision boils down to this: Thomas had no expectation of privacy because the mouthpiece was a "discarded item" akin to a soda can or cigarette butt. Thomas, the court said, should have wiped off the mouthpiece. Because the police typically throw the used mouthpieces in the trash, they were justified in keeping the one used on Thomas and testing the saliva.
Again, in our view the appellate court has erred in its decision. A PAS mouthpiece - which the police required Thomas to blow into - is not analogous to another item like a can or cigarette that a person clearly possesses and then chooses to discard. It is unreasonable to think that someone blowing into an intoxication device will think he has a right to tell the police he wants to wipe off the mouthpiece, or even keep that particular component.
We hope that other appellate courts and the state supreme court reexamine this issue and come to a different and more reasonable conclusion.
