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Name: People v. Gallego
Case #: C061749
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/22/2010

A individual has no reasonable expectation of privacy in abandoned property even if it contains his DNA. Appellant tossed a cigarette butt on a public sidewalk. Police then collected it and conducted a DNA test on it to see whether appellant was the likely perpetrator of an unsolved murder. After his conviction, appellant appealed the denial of his motion to suppress evidence which he argued was a warrantless search violating his reasonable expectation of privacy. The Court of Appeal held the police conduct did not violate the Fourth Amendment. Appellant abandoned the cigarette butt by voluntarily discarding it on a public sidewalk, so he had no reasonable expectation of privacy in it. The court rejected the argument that the concept of abandonment did not apply because leaving a trail of DNA is not a conscious activity. At least in this case, the act of littering was a conscious one. The court also rejected the claim that the DNA testing was an additional unlawful search. The court found it significant that the testing was done only for the purpose of identifying appellant as a suspect in the crime. The court distinguished Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, where the high court found the collection and subsequent chemical analysis of biological samples to “obtain physiological data” was a search. What happened here was no different from obtaining a fingerprint from a cigarette butt, conduct which has been sanctioned under the Fourth Amendment.