The collection of defendant’s DNA sample in 2006 was unlawful under the Fourth Amendment because the prosecution failed to prove defendant was validly arrested or that his DNA was collected as part of a routine booking procedure. In 2006, Marquez was arrested on suspicion of a drug offense. Four days later, officers collected a DNA sample and entered it into a statewide database. No charges were subsequently filed. Between 2006 and 2008, Marquez was arrested three more times and was ordered to submit to DNA testing on each occasion. In 2008, investigators retrieved DNA evidence from a robbery, and that evidence matched Marquez’s DNA profile in the database. Officers discovered that Marquez was on probation subject to a search and seizure condition. Officers contacted Marquez about the robbery and, with Marquez’s consent, obtained a DNA sample. He moved to suppress the DNA evidence, arguing that the 2006 collection of his DNA sample violated the Fourth Amendment and sought to suppress all fruits of the allegedly unlawful search. The court denied the motion, and the jury found Marquez guilty of all charged counts. Marquez appealed. Held: Affirmed. The DNA collection requirement in California’s DNA Act is constitutional under the Fourth Amendment as applied to an individual who was validly arrested on probable cause to hold for a serious offense and who was required to swab his cheek as part of a routine booking procedure at county jail. (People v. Buza (2018) 4 Cal.5th 658.) Here, the prosecution failed to prove by a preponderance of the evidence that Marquez was validly arrested in 2006. There was nothing in the record to indicate that Marquez’s 2006 arrest was supported by probable cause, and moreover, the collection of his sample four days after his arrest does not indicate that the collection of the sample was part of a routine booking procedure. The warrantless search violated the Fourth Amendment.

The trial court properly admitted DNA evidence from a subsequent collection because it was sufficiently attenuated from the unlawful collection. The fact that a Fourth Amendment violation has occurred does not automatically require the application of the exclusionary rule. Under the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. (Utah v. Strieff (2016) __ U.S. __ [36 S.Ct. 2056, 2061].) The U.S. Supreme Court identified three factors to determine whether the illegality (the poisonous tree) has become sufficiently attenuated to permit the admission of the obtained evidence (the fruit)—temporal proximity, intervening circumstances, and the purpose and flagrancy of the misconduct. Applying these three factors, the court determined there was a substantial break in time between the unlawful 2006 DNA collection and the lawful 2008 collection, there were multiple intervening circumstances (such as Marquez’s multiple other arrests and DNA testing, and his consent to the 2008 testing), and there was a lack of evidence concerning flagrant official misconduct. The court concluded that the unlawful 2006 collection of Marquez’s DNA sample was sufficiently attenuated from the 2008 “cold hit” linking Marquez to the robbery and the lawful 2008 collection of his DNA sample. Thus, the trial court properly denied Marquez’s motion to suppress evidence.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/G048762M.PDF