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On DNA/Blood samples-limit the scope of your consent

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  • Legalbear
    Searches as well. J [52] B. Scope of Consent [53] Alternatively, defendant contends that even if his consent was voluntary, it was nevertheless
    Message 1 of 1 , Sep 29 12:12 PM
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      Searches as well. J

       

      [52]        B. Scope of Consent

       

      [53]       Alternatively, defendant contends that even if his consent was voluntary, it was nevertheless "limited to use of the sample for comparison only with evidence from the pending robbery case" in Missouri. Thus, he claims Missouri officials exceeded the scope of his consent when they shared his DNA profile with Colorado authorities. We are not persuaded.

       

      [54]       A warrantless search conducted on the basis of consent is limited by the terms given by the consenting party. People v. Dumas, 955 P.2d 60, 62 (Colo. 1998). Whether a search remained within the boundaries of the consent is a factual question to be determined from the totality of the circumstances. Id. The scope of consent is measured by a test of "objective reasonableness." People v. Najjar, 984 P.2d 592, 596 (Colo. 1999); Dumas, 955 P.2d at 63. In other words, "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Najjar, 984 P.2d at 596 (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)); see Gaynor, 820 N.E.2d at 244.

       

      [55]       In rejecting defendant's argument here, we are persuaded by the following reasoning of the Massachusetts court in Gaynor:

       

      [56]       "The standard for measuring the scope of a suspect's consent under the Fourth Amendment [to the United States Constitution] is that of 'objective' reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect?" The scope of consent is ordinarily understood to refer to the scope of the search, and is defined by the areas, objects or things for which consent is given.

       

      [57]       Here, a reasonable person likely would have concluded that police were seeking the defendant's blood tests results, including his DNA profile. The object of the intended search was a sample of the defendant's blood and the identifying information that could be obtained by DNA testing of the sample. The testing actually done on the defendant's blood sample was no more intense or intrusive of his privacy interests than what was expressly sought. The scope of the search, blood tests, was confined to what a reasonable person would have understood from the request by police. Contrary to the defendant's claim, the scope or object of the intended search was not the investigation into the disappearance of the fourth victim, which police had mentioned. Their statement about that investigation may have been relevant to the voluntariness of the defendant's consent, but in this case it did not define the scope of his consent....

       

      [58]       Although it is a suspect's right to limit the scope of a search to which he consents, the defendant did not avail himself of that right.

       

      [59]       Gaynor, 820 N.E.2d at 244 (quoting Jimeno, 500 U.S. at 251) (citations omitted); see also State v. Notti, 71 P.3d 1233, 1237-38 (Mont. 2003) (concluding that a defendant's privacy and Fourth Amendment rights are waived when the defendant consents to a blood draw and DNA profile in one case and the DNA profile is then used for comparison purposes in another unrelated case).

       

      [60]       Here, as in Gaynor, there is no evidence in the record that defendant limited the scope of his consent in any way, much less to the use of his DNA profile only for the Missouri robbery case. Although the original motion to compel filed by the Missouri prosecutor referenced that case (which was the only case pending against defendant at that time), the DNA sample taken from defendant was not obtained pursuant to a court order on that motion. Rather, defendant voluntarily consented to the taking of his saliva and did not limit his consent in any way. Further, the scope of the actual search here, as consented to by defendant, was limited to its intended object, namely, a sample of defendant's saliva for DNA testing. Gaynor, 820 N.E.2d at 244; see People v. Olivas, 859 P.2d 211, 214 (Colo. 1993) ("The scope of a warrantless search is generally defined by its expressed object, and a consensual search may not legally exceed the scope of the consent supporting it." (citation omitted)).

       

      [61]       Thus, we conclude that the typical reasonable person in defendant's place would have understood that the DNA sample taken from him and the data obtained from analysis of the sample would remain in possession of law enforcement and be available for future law enforcement uses. In our view, no reasonable person would believe that, absent some express limitation by the defendant, the police would be limited in their use of the DNA sample to the crime then under investigation.

       

      [62]       We therefore conclude the trial court did not err in denying defendant's motion to suppress on the ground that the scope of his consent was exceeded.

       

      [63]       Because of our resolution of this issue, we need not address the People's remaining arguments based on the inevitable discovery doctrine or the purposes of the exclusionary rule.

       

      Quote above taken from: People v. Collins, 2010.CO.0000017< http://www.versuslaw.com>¶ ; No. 06CA1235 (Colo.App. 2010)

       

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