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The Appeals Court of Massachusetts has weighed in on the national debate over DNA collected unwittingly from defendants by upholding a lower court’s conviction in a case involving DNA collected from the defendant’s sidewalk spit. In a March 16 decision, the appeals court affirmed the lower court’s conviction of Raul Cabral for two counts of rape. Commonwealth v. Raul Cabral, No. 06-P-987 (Mass. App. Court) “We conclude that under the circumstances, the expectorating defendant had no reasonable expectation of privacy in his spittle, or in the DNA evidence derived therefrom,” said the opinion authored by Associate Justice Gary S. Katzmann. In his appeal, the defendant asked the court to suppress a court-ordered DNA case and for a retrial because the prosecutor expressed personal opinions about the evidence during closing arguments. DNA collected from Cabral’s spit by a private investigator hired by the victim’s family to covertly collect Cabral’s DNA was the basis of the court-ordered DNA test. Cabral’s lawyer Dana A. Curhan of the Boston-based Curhan Law Office could not be immediately reached for comment. The decision references a March Supreme Judicial Court decision that upheld a lower court’s denial of a motion to suppress DNA evidence. In that case, police collected DNA from cigarette butts and a water bottle used by the defendant during police questioning. Commonwealth v. Jeffrey Bly, No. 08413 (Mass.) Bly relied on established Supreme Court case law which says defendants must have an objectively reasonable expectation of privacy regarding the items seized and a “subjective expectation of privacy” in order to prove a warrantless search or seizure. William R. Connolly, assistant district attorney in the Bristol district attorney’s office, argued the case for the Commonwealth. “The Constitutional protections are not triggered unless someone has an expectation of privacy,” Connolly said. “When he spit on a public sidewalk he voluntarily abandoned whatever protection he would otherwise have.” Cabral has no automatic right to appeal. He could petition the Supreme Judicial Court to review the case at its discretion. Law enforcement agencies and courts around the country are using or ruling on so-called abandoned DNA. Earlier this month, the NLJ reported that Buffalo police charged a man with murder in February based on DNA from sidewalk spit. In January, Detroit police issued an arrest warrant for car theft based on DNA from a partially eaten cinnamon roll. On May 10, the Washington Supreme Court issued an opinion upholding a second-degree murder conviction based on DNA from an envelope licked by the former Seattle resident. Police collected his saliva through a ruse involving a fictitious law firm.

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