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Name: People v. Thomas
Case #: B228049
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/28/2011

The defendant had no reasonable expectation of privacy in the saliva he left on the mouthpiece of the police alcohol screening device; therefore, subsequent DNA testing of that saliva did not constitute a search. In December of 2008, appellant was stopped for a traffic violation, during which police observed that his eyes were bloodshot and watery. He consented to a PAS (preliminary alcohol screening) test which required him to blow into a plastic mouthpiece. Defendant passed all of the alcohol tests and was released. Police preserved the disposable PAS mouthpiece, extracting saliva for a DNA test. The results of the DNA test connected defendant with a number of residential burglaries (for which he was already suspected). After denial of his Penal Code section 1538.5 motion, defendant entered a guilty plea. The Court of Appeal here affirmed the denial of the suppression motion, concluding “that the DNA test was not a search because defendant abandoned any privacy right he had in the saliva he deposited on the police device.” The Fourth Amendment protects against warrantless governmental searches when an individual’s reasonable expectation of privacy is violated. Here, defendant abandoned the mouthpiece of the PAS device when he did not ask for it after the test was administered, ask what police would do with it, or wipe it off. Further, police were not required to advise defendant they would use the mouthpiece for DNA testing because the PAS breath sample was only used to test the alcohol content of defendant’s blood, which is a use consistent with the implied consent statute (Veh. Code, §23612, subds. (h) & (j)). The saliva defendant left on the mouthpiece, in which he could claim no right to privacy, was merely incidental to the PAS test.