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DNA Evidence Taken From Defendant While in Police Custody Not a Violation Of Right To Counsel


New York Court of Appeals People v. Gibson 2011 NY Slip Op 05115                         Decided June 14, 2011

Issue: Whether the collection of DNA evidence from an abandoned cigarette butt taken from a defendant while in police custody violates the right to counsel rules in New York.

Holding: The Court of Appeals held that the right to counsel rule was not violated because the transfer of bodily fluid was not a communicative act that disclosed the contents of defendant’s mind and the defendant was not coerced into providing the DNA evidence and he was not subjected to a search.

Facts: Defendant Gibson was arrested on a bench warrant on an unrelated matter to the robbery in this case.  While incarcerated Gibson asked to speak to a detective he had known for several years.  While meeting with the Detective the police, hoping to get a DNA sample, offered Gibson a cigarette from which they later obtained the DNA sample.  The DNA sample from the cigarette matched the DNA on an article of clothing from the unrelated robbery.  Gibson was indicted for robbery in this case and convicted after trial.

Legal Analysis: In this case it was undisputed that Gibson’s right to counsel had attached on the matter unrelated to this case.  When he spoke to the Detective he did not speak to him about the matter that he was represented on.  The Court of Appeals noted that obtaining the DNA from the abandoned cigarette that Gibson left in an ashtray after his conversation with the Detective was not a violation of the right to counsel.

The Court of Appeals reasoned that the display of a pack of cigarettes during their conversation and providing one to defendant was not likely to elicit an incriminating response.  The DNA voluntarily deposited on the cigarette was not a response or statement subject to exclusion under New York’s right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed the contents of defendant’s mind.  People v. Havrish, 8 NY3d 389.  Nor was Gibson coerced into providing the DNA evidence or subject to a search.  The Court found it significant that Gibson initiated the conversation and requested the cigarette.  Given these facts the Court stated that it was not a violation of right to counsel rules for the police to capitalize on the situation.