People v. Gallego
190 Cal. App. 4th 388
Cal. Ct. App.2010Background
- Gallego was acquitted of first degree murder but convicted of 1991 second degree murder with a knife, sentenced to 16 years to life.
- Appeal contested DNA testing of a cigarette butt discarded by Gallego; argued it was a Fourth Amendment search.
- Trial court denied suppression; presentence conduct credits and parole revocation fine issues disputed and modified on appeal.
- DNA on a towel from the 1991 crime scene matched a male profile related to Esteres; cigarette butt DNA matched the towel DNA.
- Police surreptitiously collected the cigarette butt in 2006 to identify Gallego as a suspect in an ongoing investigation.
- Court ultimately held cigarette butt testing was not a Fourth Amendment search due to abandonment and lack of privacy expectation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DNA testing of a discarded cigarette butt is a Fourth Amendment search | Gallego: testing violates privacy expectations | Gallego: testing reveals private medical/familial data | No search; abandonment defeats privacy expectation |
| Whether the jury was coerced or trial error occurred in deadlock and juror information | Gallego contends coercion and improper denial of juror info | Gallego challenges trial conduct and disclosure | Denied; no reversible error (claims rejected) |
| Whether the court erred in instructing on alleged false statements by Gallego | Gallego challenges misinstruction | Gallego argues correct standard was not applied | Not shown error requiring reversal |
| Whether hearsay was improperly admitted and the polygraph willingness exclusion was improper | Gallego challenges evidentiary rulings | Gallego contends improper admissions and exclusions | Rulings affirmed (no reversible error) |
| Whether presentence credits and parole revocation fine were properly calculated | Gallego argues for different credits/fines | Gallego claims improper computation | Parole revocation fine stricken; 506 days presentence credits awarded |
Key Cases Cited
- People v. Parson, 44 Cal.4th 332 (Cal. 2008) (abandonment doctrine and public-private expectations)
- California v. Greenwood, 486 U.S. 35 (U.S. Supreme Court 1988) (no reasonable privacy expectation in discarded trash)
- Cupp v. Murphy, 412 U.S. 291 (U.S. Supreme Court 1973) (fingerprint testing analogy to DNA testing)
- Davis v. Mississippi, 394 U.S. 721 (U.S. Supreme Court 1969) (privacy implications of testing biological material)
- Hicks, 480 U.S. 321 (U.S. Supreme Court 1987) (additional invasion when examining items on premises)
- Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (U.S. Supreme Court 1989) (bodily fluids testing as Fourth Amendment intrusion)
- People v. Ayala, 24 Cal.4th 243 (Cal. 2000) (privacy considerations in DNA and related testing)
- California v. Ciraolo, 476 U.S. 207 (U.S. Supreme Court 1986) (reasonable expectation of privacy in public views)
- United States v. Davis, 657 F.Supp.2d 630 (D. Md. 2009) (DNA testing of abandoned evidence discussed)