In 2006, Daniel Marquez was arrested in Ventura County for an alleged drug possession offense. His DNA sample was collected four days later without a warrant and without his consent. In 2008, Orange County investigators obtained DNA evidence from a robbery that matched Marquez’s DNA profile in the database. Marquez, who was on felony probation at that time, had voluntarily provided this DNA sample. Subsequently, Marquez was charged with two felony robbery counts and ultimately convicted at a jury trial. He was sentenced to 25 years to life in state prison.
Should Marquez’s DNA profile have been used in the new case if his DNA was collected illegally? Were Marquez’s Fourth Amendment rights violated when his DNA sample was collected in 2006?
These are the questions that were posed when Marquez appealed his conviction.
DNA Evidence and the Fourth Amendment
Marquez appealed his conviction in part on the basis that the collection of his DNA sample in 2006 violated the Fourth Amendment and any evidence discovered as a result should have been excluded.
The California Appellate Court did not agree. It affirmed Marquez’s conviction.
In coming to this decision, the court analyzed Marquez’s DNA collections in both 2006 and 2008. The court held that Marquez’s DNA collection in 2006 violated the Fourth Amendment since the prosecution did not collect this sample as part of a routine booking procedure. Nevertheless, the court held that DNA evidence was properly admitted in 2008 under the attenuation doctrine.
What is the Attenuation Doctrine?
Under the attenuation doctrine, exclusion of evidence is not required when the connection between the unlawful activity and the evidence in question becomes “so attenuated as to dissipate the taint.” What that means is the connection between the evidence and the illegal method of obtaining it is sufficiently remote.
Furthermore, the state Supreme Court identified three factors to determine whether the illegality has become sufficiently attenuated to permit admission of the evidence:
- Temporal proximity
- Intervening circumstances; and
- Flagrancy of the misconduct
In Marquez’s case, the appeals court found that a substantial period of time (approximately two years) had elapsed between the unlawful collection of his DNA in 2006 and the lawful collection of it in 2008.
The court also found the existence of numerous intervening circumstances. Marquez had been arrested three times between 2006 and 2008 and had been ordered to submit to DNA testing. In 2008, Marquez was also on felony probation and required to consent to the cheek swab. With respect to the flagrancy of the misconduct, the court held that there was nothing to indicate that there was an improper motive for either DNA collection.
The court concluded that DNA evidence was lawfully collected from Marquez in 2008. This collection was sufficiently attenuated from the DNA evidence that was unlawfully collected in 2006. Thus, the trial court properly denied Marquez’s motion to suppress evidence.
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