Com. v. Cabral

• Decision Date: 16 May 2007
• Docket Number: No. 06-P-987.,06-P-987.
• Citation: 866 N.E.2d 429,69 Mass. App. Ct. 68
• Parties: COMMONWEALTH v. Raul CABRAL.
• Court: Appeals Court of Massachusetts

866 N.E.2d 429

69 Mass. App. Ct. 68

COMMONWEALTH v. Raul CABRAL.

No. 06-P-987.

Appeals Court of Massachusetts, Bristol.

Argued March 6, 2007.

Decided May 16, 2007.

Dana Alan Curhan, Boston, for the defendant.

William R. Connolly, Assistant District Attorney, for the Commonwealth.

Present: COHEN, MILLS, & KATZMANN, JJ.

KATZMANN, J.

Raul Cabral, suspected by a family of raping their mentally challenged daughter, expectorated on a public sidewalk. A private investigator, on sick leave from the New Bedford police department (department) — who had been hired by the family to surveil the suspect covertly and to attempt to obtain deoxyribonucleic acid (DNA) evidence — retrieved the saliva and sent it for DNA testing. Ultimately, the results provided the basis for a court-ordered DNA test, which implicated the defendant (who had been unaware that the observant investigator had been on the case and was surveilling him).

After a jury trial in Superior Court, the defendant was convicted of two counts of rape in violation of G.L. c. 265, § 22(b). He raises two claims on appeal: that the motion judge erred in failing to suppress the results of the court-ordered DNA test; and that he is entitled to a new trial because the prosecutor's closing argument contained expressions of personal opinion on the weight of the evidence. 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. Moreover, his contentions concerning the prosecutor's closing argument are not persuasive. We affirm.

Background. In ruling on the motion to suppress, the motion judge made the following findings. The victim is a mentally challenged individual who lives with her parents in New Bedford. At the time of the motion hearing, she had two daughters, ages eleven and two years old. After discovering the second pregnancy, the victim's family attempted to determine the father.¹ When a doctor informed the family that the onset of the pregnancy was in October, 2001, the family began to suspect that the defendant was the father. The family suspected the defendant because he was working at their residence during October, 2001, and had access to the victim. This suspicion was confirmed somewhat when, after confrontation, the victim informed her sister that the defendant had impregnated her² and that other individuals had touched her inappropriately.³ The victim's family conveyed this information to the department. On the basis of this information, Detective Pamela Alves sought DNA samples⁴ from multiple individuals, including the defendant. Other than the defendant, all those requested to provide DNA samples complied. The samples did not yield a "match."

In light of the defendant's refusal to provide a sample and Alves's inability to obtain a court order requiring one, the victim's family hired a private investigator, one Albino Faria,⁵ to secure DNA evidence from the defendant. Working independently of the department, Faria surveilled the defendant for a "number of months," but was unable to obtain a sample.⁶ Faria therefore devised a plan wherein his assistant one Carlos Lourenco,⁷ would contact the defendant to arrange for plumbing work at Lourenco's house. The defendant performed the requested plumbing work, during which time he spat on the sidewalk outside of Lourenco's residence. Lourenco collected the spittle⁸ and presented it to Faria, who sent it to a laboratory for genetic testing.

The results implicated the defendant.⁹ Faria provided a copy of the results to Detective Alves, accompanied by a report of his investigation.¹⁰ With this information in hand, Detective Alves sought an order from the District Court requiring the defendant to submit a DNA sample. A District Court judge issued the order¹¹ without an explanatory opinion. Eventual testing identified the defendant as the father of both of the victim's children.

Discussion. 1. DNA sample. The motion judge denied the defendant's motion to suppress, ruling that he had no expectation of privacy in his saliva when he abandoned it on a public sidewalk. On appeal, the defendant essentially argues that the motion judge erred because the DNA sample was obtained in a ruse devised by a State actor, and that his State and Federal constitutional rights were violated.

The decision in Commonwealth v. Bly, 448 Mass. 473, 489-491, 862 N.E.2d 341 (2007), is instructive. There, in affirming the denial of a motion to suppress DNA evidence, the Supreme Judicial Court determined that the defendant lacked an expectation of privacy in the cigarette butts and a water bottle that he had abandoned, and that the police did not act improperly in collecting DNA evidence from those items after questioning the defendant on unrelated offenses.¹² The items had been collected by the police pursuant to a ruse where the police had placed cigarettes and the water bottle in the interview room, in the hope, unbeknownst to the defendant (who had declined to provide a blood sample), of collecting DNA evidence. In response to the defendant's argument "that the method used by the Commonwealth in obtaining his known DNA sample constituted a nonconsensual seizure," the Supreme Judicial Court presented the analytical framework that guides us here:

"[The defendant] must bear the threshold burden of showing that a warrantless search or seizure occurred. Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715, 488 N.E.2d 410 (1986). This question is analyzed under the familiar two-part query whether [the defendant] had a subjective expectation of privacy in the items seized, and if so, whether that expectation was reasonable objectively. See Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991), citing California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)."

Commonwealth v. Bly, supra at 490, 862 N.E.2d 341. Put another way, "The Fourth Amendment and art. 14 protect from unreasonable search and seizure those areas in which individuals have a subjective expectation of privacy that is objectively `reasonable,' `justified,' or `legitimate.'" Commonwealth v. Krisco Corp., 421 Mass. 37, 41, 653 N.E.2d 579 (1995), citing California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Thus, in analyzing a search by a State actor, we look to whether the defendant had a subjective expectation of privacy in the place searched or the item seized, and whether as an objective matter society would recognize that expectation as reasonable. Krisco Corp., supra at 41-42, 653 N.E.2d 579, citing California v. Greenwood, supra. See generally Commonwealth v. Feyenord, 62 Mass.App.Ct. 200, 206-207, 815 N.E.2d 628 (2004), S.C., 445 Mass. 72, 833 N.E.2d 590 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1369, 164 L.Ed.2d 77 (2006); Smith, Criminal Practice and Procedure § 158 (2d ed. 1983 & Supp.2006); Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 3-5 (2006).

In the present case, although the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids), see Matter of Lavigne, 418 Mass. 831, 835-836, 641 N.E.2d 1328 (1994); Jansen, petitioner, 444 Mass. 112, 120-121, 826 N.E.2d 186 (2005), when he expectorated on to a public street and did not retrieve the fluid, he voluntarily abandoned that protection; he assumed the risk of the public witnessing his action and thereafter taking possession of his bodily fluids. See Commonwealth v. Ewing, 67 Mass.App.Ct. 531, 540, 854 N.E.2d 993 (no expectation of privacy in cigarette butts abandoned as trash in interview room), further appellate review granted, 447 Mass. 1113, 857 N.E.2d 1094 (2006). See also Commonwealth v. Pratt, 407 Mass. 647, 660-661, 555 N.E.2d 559 (1990) (observations and inspections occurring after items deposited in public places generally fail to intrude upon reasonable expectation of privacy); Commonwealth v. Nutile, 31 Mass.App.Ct. 614, 619, 582 N.E.2d 547 (1991) (no reasonable expectation of privacy in drugs voluntarily thrown from vehicle); Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 564, 633 N.E.2d 1058 (1994) (no reasonable expectation of privacy in drugs dropped on ground during police surveillance).

Here, the motion judge found that the location where the defendant spat was a public street, a place freely accessible to others. See Krisco Corp., 421 Mass. at 42-44, 653 N.E.2d 579. See also Commonwealth v. Pratt, supra (no reasonable expectation of privacy in trash left on curb); Commonwealth v. Bloom, 18 Mass.App.Ct. 951, 952, 468 N.E.2d 667 (1984) (defendant had no reasonable expectation of privacy in open area of public restroom). Moreover, there is no indication that the defendant took affirmative action to recover the saliva once it had left his mouth. In Bly, supra at 490-491, 862 N.E.2d 341, the defendant did not attempt to retrieve the cigarette butts when leaving the interview room, nor did he request to go back and collect them. The court held that Bly's "wholesale failure to manifest any expectation of privacy in the items whatsoever" compelled the "conclusion that [he] had no subjective expectation of privacy." Id. at 491, 862 N.E.2d 341. See Ewing, supra (defendant made no attempt to take cigarette butts when leaving interview room). Contrast Krisco Corp., supra at 45, 653 N.E.2d 579 (discussing affirmative steps taken by defendant to protect dumpster from public access). Thus, where the defendant here voluntarily abandoned his saliva onto a public street, the investigator (whether deemed to be functioning in a private capacity or as a State actor) did not infringe on any reasonable expectation of privacy when he recovered the spittle from the street.¹³

The defendant contends that Bly stands for the proposition that DNA evidence that is retrieved as the culmination of a ruse can be admissible only if the police had legitimate grounds to question the defendant,...