Case Study 1

Overview — Based on: In re Frank, 2017 Cal. App. Unpub. LEXIS 1313 (2017).

Frank B., a California juvenile, allegedly burglarized a home while he was still on probation for a misdemeanor assault. While he was still on the original probation, police arrested Frank B. for an unrelated carjacking. A police officer conducted a buccal swab to collect a sample of his cells for DNA analysis. The officer relied upon a condition of the juvenile's assault probation that required Frank to allow police to conduct warrantless Fourth Amendment searches of the juvenile at any time. Upon analysis, Frank’s DNA matched DNA found at the burglary crime scene.

After the trial court denied juvenile Frank’s motion to suppress the DNA evidence, Frank admitted to one count of felony burglary. Frank pursued an appeal. In contending that the search was illegal, he argued that the trial court erred in denying his motion to suppress his DNA collection because the use of buccal swab cell inside of his mouth constituted an unreasonable search and seizure. He contended that such a search was beyond the scope of the conditions of his probation that required him to allow warrantless Fourth Amendment searches of his person for any reason.

In his appeal, Frank B. contended that the trial court committed error when it dismissed his argument that the buccal swab search was unreasonable under the scope of the juvenile plea agreement that granted him probation. The prosecution contended that the buccal swab search was a reasonable search under the conditions of his probation and, even if it was not reasonable, the deputy conducted a search in an act of reasonable “good faith.” The prosecution contended that the DNA collected would have been discovered inevitably because a California statute required defendants who admit to felonies to submit to a DNA sample collection.

The reviewing court indicated that a collection of DNA cells from the mouth constitutes a Fourth Amendment search and should be subject to the restraints of that amendment. As a general rule, searches that are conducted without warrants are illegal, and the evidence obtained is subject to suppression from use in criminal and juvenile courts. In a California case, Jones v. State, 231 Cal. App. 4th at p. 1265 (2014), the reviewing court noted, with approval, that an adult was placed on parole with the requirement that the parolee would have to submit to a search at any time without a warrant. In a United States Supreme Court case, Maryland v. King, 133 S.Ct.1958 (2013), the Court approved the use of a Maryland statute that allowed a buccal swab to be taken without a warrant where a person had been arrested for a violent felony.

The wording in the probation agreement with juvenile Frank was similar to the California Jones case that permitted a warrantless search of the parolee at any time. Frank B. contended that a vehicle swab in the mouth was more invasive than a blood draw because the vehicle swab evidence can show much more about a person than an analysis of one’s blood. Frank B. also contended that a juvenile who was on probation for a misdemeanor possesses a greater expectation of privacy than an adult (such as Jones in Jones v. State) could expect when on adult parole release. In contrast to Jones, where blood alcohol evidence would have rapidly dissipated over time, a warrant could have been obtained, since DNA evidence would not change over time.

Case Study 2

Overview — Based on: Tolbert v. State, 2011 Ala. Crim. App. LEXIS 98 (2011).

Richard Tolbert pleaded guilty to the unlawful possession of a controlled substance, namely dihydrocodeinone (brand name Lortab), in violation of §13A-12-212, Ala. Code 1975. Tolbert was sentenced to 15 years’ imprisonment pursuant to the Alabama Habitual Felony Offender Act. Two police officers, in unmarked cars and plain-clothed, observed a man, who was later determined to be Tolbert, sitting in a black Cadillac. Random individuals repeatedly visited the Cadillac and offered something to the people in the Cadillac, while individuals within the vehicle returned some object to the individuals who had approached the vehicle. To a trained officer’s eye, this conduct appeared to offer evidence that drugs were being sold from the motor vehicle by the individuals who were sitting within it. One of the police officers, Harris, testified that he witnessed numerous vehicles pull beside the passenger side of the Cadillac and stated that he observed hand-to-hand transactions between those vehicles and the front passenger window of the Cadillac.

According to Officer Harris, someone from the other vehicles “would hand an unknown amount of cash, and somebody out of the front passenger position in the Cadillac would hand an unknown object back.” The area was known to be a high-crime area where drugs were often bought and sold. Officer Harris stated that based on his narcotics training and field experience, he suspected illegal drug deals were being conducted from the Cadillac, giving him what he thought was probable cause to arrest those involved. Other officers observed the identical conduct from different vantage points.

The Cadillac left the area but, pursuant to a radio call by the undercover officers, it was stopped by a uniformed officer in a marked car. One of these officers ordered Tolbert from the vehicle and conducted a “pat-down,” wherein he discovered plastic bags in Tolbert’s pants pocket. The officer placed his hands inside Tolbert’s clothing and removed the plastic bags. Based upon the officer’s observation of the plastic bags, he believed that illegal drugs were contained within them. Prior to the pat-down, the officer had probable cause to arrest Tolbert but had not communicated this fact to Tolbert.

The prosecution initially argued that the controlled substances were discovered during a valid stop-and-frisk, where the object may be seized if its illegal quality is immediately known to the officer by the sense of touch. The officer who initially patted down Tolbert did not believe that what he felt was a weapon. The appellate court ruled that stop-and-frisk theory did not permit the seizure of the recreational pharmaceuticals, but it was willing to consider other legal theories.