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Cold Case Murder in LA Solved Because of Abandonment DNA
After six years of two unsolved murder cases, it seems as if there would be no hope of catching the person responsible for the crime. This is not the case here, Geovanni Borjas was arrested last Thursday for the rape and murder of two young women in the Lincoln Heights area of Los Angeles. Borjas has pleaded not guilty to the crimes and is due back in court June 22nd. He will remain in jail without bail. The first victim is 17-year-old Michelle Lozano, she was last seen alive on April 24, 2011. The following day her body was discovered of the 5-freeway nude and wrapped in plastic bags and placed in a container. The second victim is 22-year-old Bree” Anna Guzman. On January 26th, 2012, her body was found in Glendale also off of a freeway ramp. Guzman had been reported missing for about a month.
But what lead to the arrest of Borjas? Apparently, there was evidence on both the bodies that matched which in turn linked the two murders together. When the investigation went on they looked into the DNA bank and no matches showed up, which would seem like the end of the road. However, the investigators would then conduct a familial search. A familial DNA search is a search by law enforcement in DNA databases for genetic information indicating a relative of a person they seek to identify. When a search for an exact match to a DNA sample comes up fruitless, a familial DNA search may bring back a partial match, indicating a sibling, child, parent or another blood relative. Find Law DNA Search Article. In this case, this search leads to Borjas Father, who was arrested in the past in a completely different case, but DNA was kept in the collection. The DNA was close but no match, but the police then investigated the Son, Geovanni Borjas.
The police would then be investigating Borjas without his knowledge. They would follow him throughout the day and see if they could find anything. They also waited for Borjas to spit on the sidewalk and then they collected the saliva from the ground. The officers then gave the saliva sample to the investigators which deemed the DNA to be a match. Geovanni Borjas was then arrested.
We will look at this type of evidence, which is called abandonment DNA, just how powerful it is. In addition, how this evidence is legal. Also, we will discuss how allowing this evidence can affect citizens. Lastly, we will discuss if or how this can be changed.
What is abandonment DNA? Abandoned DNA is defined as any amount of human tissue capable of DNA analysis and separated from a targeted individual’s person inadvertently or involuntarily, but not by police coercion. Elizabeth Joh, Law Review of Northwestern. It is essential that it is clear that abandonment DNA is known to be different from taking blood to check to see what one’s blood alcohol content is. An example of abandonment DNA is where one is done smoking a cigarette and flicks it on the ground or in the trash. After it is ‘abandoned’ it is then taken by the police or investors and tested. Here, the abandoned DNA would be the saliva Borjas left on the sidewalk when he spat. This would be the DNA, and abandoned by borjas all in one motion. It is also noted that there does not have to be a great amount of the DNA for accurate testing, just a little bit is more than enough to yield acceptable and accurate test results. Therefore, abandonment DNA is a slight amount of DNA that a person can inadvertently leave behind.
Is the use of abandonment DNA legally allowed in court? To some surprise, the answer is yes. One would feel that the taking of saliva of the ground would infringe on one’s reasonable expectation of privacy under the Fourth Amendment under The United States Constitution. However, it was that “DNA testing of a surreptitiously collected cigarette butt, which defendant had voluntarily discarded by tossing it onto a public sidewalk, did not constitute a search under the Fourth Amendment to the federal Constitution, since defendant had no reasonable expectation of privacy in the testing, where the testing was done only to identify defendant as a suspect in an ongoing criminal investigation.” People v. Gallego, 117 Cal. Rptr. 3d 907 (Cal. App. 3d Dist. 2010). This is analogues with Borjas spitting as he is walking down the street because he voluntarily discarded his saliva in a public area, thus there is no search and Borjas had no reasonable expectation privacy from the saliva being tested.
The Fourth Amendment usually deals with a reasonable expectation of privacy to one’s homeland or belongings. Not so much with this kind of DNA. The use of the Fourth Amendment actually treats the use of Abandonment DNA like one’s garbage that they set out on the curb. The case law states that where suspects knowingly expose items to public view, the Court has held that collection of such evidence by the police falls outside the Fourth Amendments protections. Katz v. United States, 389 U.S. 347, 361 (1967). Here, because the spit or a used cigarette that is on the public sidewalk, in the public view has no protection for it. This is why the police were allowed to take the spit off the sidewalk from Borjas and use it as evidence and later to arrest him for the two alleged murders.
This is completely different from when a government forcibly removes DNA from a person. “The obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two levels; the seizure of the person necessary to bring him into contact with government agents, and the subsequent search for and seizure of evidence. United States v. Dionisio, 410 U.S. 1, 8 (1973). A scenario that would trigger this would be police making one spit into a jar or holding them down and taking their blood. None of this took place in regard to the Borjas situation, but as an example of what would violate The Fourth Amendment.
What kind of affect can this have on citizens? This could possibly result to a mass hysteria. The idea that a search warrant is not required to take people’s DNA while they complete normal daily actions can lead to reasonable fear of invasion of privacy. Los Angeles Police Department took a cup of coffee out of the trash and used it as a sample of DNA to convict Adolph Laudenberg of murders that occurred years ago. One may argue that this is good it catches criminals but the problem would then be where do we draw the line. In Victoria, Australia the police were using everyday household items and creating banks of people who were not being investigated, just so the police would have a sample in case their DNA was at a crime scene they would be able to identify them with little effort. The police office even admitted there was no protocol for the sampling and creating the bank and there was no law which regulated how the police conducted the sampling of abandoned DNA. In response to the public outcry by legal and privacy advocates, Victoria’s attorney general has recently promised to examine the legal loophole and to review the lack of safeguards on the practice. Patrick Murphy, Call for Ban on Covert DNA Sampling, AUSTRALIAN, Nov. 23, 2004.
As alluded to above, there benefit of allowing abandon DNA is that this does take people who committed crimes and take them off the street. Adolph Laudenberg was tied to four killings in the 1970’s and was convicted which is a good thing. People should pay for what they have done wrong. As our technology advances, so does our investigation processl. Which means we should be able to have a safer community because we are able to convict the people who make the community less safe.
How can we limit the use of abandonment DNA? The courts have pretty much spoken and said this is legal. Thus, the only way to limit this would be to pull a page out of the Victoria governmental system and send the law to the legislator to fix the layout of the law. This could set limits or guidelines on how abandonment DNA is treated.
This is a debate that we as a society will deal with more and more with as we become more technologically advanced. Safety v. Individual rights to privacy.
If you have questions about DNA in your criminal case, please feel free to contact San Diego Criminal Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Attorney
