Arapahoe County District Court No. 10CR141 Honorable Elizabeth A. Weishaupl, Judge
Cynthia H. Coffman, Attorney General, Rebecca L. Williams, Assistant Attorney General, Denver, Colorado, for Plaintiff- Appellee
Douglas K. Wilson, Colorado State Public Defender, Audrey Bianco, Deputy State Public Defender, Denver, Colorado, for Defendant- Appellant
¶1 This case asks us to determine whether a cheek swab taken from a juvenile on a deferred adjudication by a juvenile probation officer, in violation of section 19-2-925.6(1), C.R.S. 2014 (juvenile DNA collection statute), must be suppressed in a later adult criminal case. We conclude that it should not be suppressed.
¶2 A juvenile court placed Ismael Casillas on a deferred adjudication. The terms of the deferred adjudication required him to be under the supervision of the juvenile probation department with standard terms and conditions. Casillas' juvenile probation officer later swabbed Casillas' cheek for a DNA sample. This DNA sample led to Casillas - now an adult - being first linked to a carjacking and, ultimately, being convicted of criminal mischief, which he now appeals.
¶3 Casillas contends that evidence of his DNA should be suppressed because its collection violated the juvenile DNA collection statute and the Fourth Amendment. We agree with Casillas that the cheek swab violated the juvenile DNA collection statute and the Fourth Amendment but disagree that evidence of his DNA should be suppressed. We therefore affirm his judgment of conviction.
I. The Cheek Swab
¶4 As part of a juvenile court plea deal, Casillas stipulated to a one-year deferred adjudication and sentence for drug possession. The stipulation required him to be under the supervision of the juvenile probation department with standard terms and conditions.
¶5 Shortly after beginning his supervision, Casillas' juvenile probation officer called Casillas in, saying that he needed to swab Casillas for DNA. Accompanied by his mother, Casillas submitted to a cheek swab where the probation officer took some cotton swabs that looked like gigantic Q-tips and swabbed the inside of his cheek to obtain a DNA sample.
¶6 The juvenile DNA collection statute states that "adjudicated offenders shall submit to and pay for collection and a chemical testing of the offender's biological substance sample to determine the genetic markers thereof." § 19-2-925.6(1). But this requirement "shall not apply to an offender granted a deferred adjudication, unless otherwise required to submit to a sample pursuant to this section or unless the deferred adjudication is revoked and a sentence is imposed." § 19-2-925.6(1)(e).
¶7 Casillas successfully completed the terms and conditions of his deferred adjudication, and the juvenile court dismissed the case and terminated jurisdiction.
¶8 Casillas' DNA sample was ultimately uploaded to the Combined DNA Index System database (CODIS).
II. The Present Criminal Mischief Case
¶9 About a year after Casillas' juvenile case was dismissed, Casillas and two other men approached a victim and, at gunpoint, ordered him to give them the keys to his car. Casillas threatened the victim with a gun to get him to turn over the keys. The police later recovered the abandoned stolen car and impounded it. Inside the car, police found small traces of blood, which they submitted to a laboratory for testing. Testing revealed that the blood matched Casillas' DNA sample in CODIS. Based on this match, Casillas became a suspect in the carjacking.
¶10 During the investigation, a CODIS administrator learned that Casillas had not been eligible for DNA testing during his deferred adjudication.
¶11 A detective also discovered that Casillas' DNA sample in CODIS was a "nonqualifying offense submission." Even so, the detective used the match to include Casillas in a photo lineup. He showed the lineup to the victim who identified Casillas as one of the carjackers.
¶12 Before his criminal trial, Casillas moved to suppress the DNA sample that identified him. He claimed that the juvenile probation officer violated the juvenile DNA collection statute by taking a cheek swab from him even though the statute did not authorize the officer to collect a DNA sample. Casillas also claimed that the cheek swab violated the reasonable search requirement under the state and federal constitutions.
¶13 At the suppression hearing, the trial court heard evidence that the CODIS administrator had sent an e-mail about Casillas' cheek swab to a probation analyst in the State Court Administrator's Office, saying, "It looks like I have another CODIS hit to an offender with a deferred sentence." The analyst confirmed that Casillas had been under a deferred adjudication and was, therefore, "not eligible for DNA testing on his case." The prosecution admitted that the cheek swab "was taken without authorization."
¶14 But, the trial court denied Casillas' motion to suppress the DNA sample. It found that, to the extent there was a violation of the juvenile DNA collection statute, suppression was not the appropriate remedy because "[t]here was no evidence supporting a finding of a willful or recurring violation of the statute presented at [the] hearing." The court also found that there was no constitutional violation in collecting Casillas' DNA because, as "a person who has pled guilty to a crime, [Casillas] does not stand in the shoes of a person alleged to have committed a crime who maintains the presumption of innocence, but somewhere between that person and a person convicted of a felony" and there are "significant government interests in maintaining such a [DNA] database."
¶15 A jury ultimately convicted Casillas of criminal mischief in connection with the carjacking.
¶16 On appeal, Casillas raises similar challenges to the trial court's denial of his motion to suppress the DNA sample as he did before the trial court.
¶17 Review of a suppression order presents mixed questions of fact and law. People v. Martin, 222 P.3d 331, 334 (Colo. 2010). We defer to the trial court's factual findings if they are supported by the record, but review its legal conclusions de novo. Id.
III. The Juvenile DNA Collection Statute
¶18 We conclude Casillas' cheek swab violated the juvenile DNA collection statute. We reach this conclusion because (1) it was undisputed that the juvenile court had granted Casillas a deferred adjudication; (2) Casillas was not required to submit a DNA sample by another section of the juvenile DNA collection statute; and (3) Casillas had successfully completed his deferred adjudication. Thus, the juvenile DNA collection statute did not authorize the collection and testing of Casillas' DNA sample.
¶19 But, that does not end our analysis. A statutory violation does not ordinarily trigger suppression of evidence because suppression "is designed to effectuate guarantees against deprivation of constitutional rights." People v. McKinstry, 843 P.2d 18, 20 (Colo. 1993) (internal quotation marks omitted) (emphasis in original); People v. Shinaut, 940 P.2d 380, 383 (Colo. 1997). Thus, our supreme court has recognized that evidence obtained through "willful and recurrent" statutory violations may be suppressed. See, e.g., People v. Wolf, 635 P.2d 213, 218 (Colo. 1981); see also People v. Shreck, 107 P.3d 1048, 1054 (Colo.App. 2004).
¶20 Premised on evidence introduced at the suppression hearing, Casillas contends that his DNA was obtained through "willful and recurrent" statutory violations as follows.
• His probation officer willfully violated the juvenile DNA collection statute by calling him in and saying that they needed to swab him for DNA. But, without more, this request does not show the probation officer ...