by Lauren Bradley
San Francisco – In Department 26 of the Hall of Justice, Judge Lam gave his ruling after more than two hours of further oral argument in a hearing on motions to suppress evidence and traverse the warrants in the high-profile “rideshare rapist” case. Judge Lam told counsel that he had reviewed the testimony, briefing, and warrants at issue in the case prior to the final hearing. At the beginning of the hearing, Judge Lam requested arguments in regard to all issues involved in the prior three-day hearing, and each side gave their final, condensed pitch.
Assistant District Attorney Morris began by addressing the initial vehicle stop and warrantless DNA collection from defendant Orlando Vlichez Lazo on July 7, 2018. Ms. Morris recounted details from the surveillance operation on the 500 block of Howard Street that gave rise to the purported DUI stop. She stated that it is an objective standard of reasonable suspicion that an officer needs to make a vehicle stop or detain an individual, though she acknowledged that in this case it was ultimately determined that the Mr. Vilchez Lazo was not under the influence at the time his vehicle was stopped by police and he was detained for at least twenty minutes. Ms. Morris asked and answered rhetorically, “Should [the police] have done things differently that night?—Of course.” And in regard to the police officers asking the defendant to deposit additional saliva on the PAS (Preliminary Alcohol Screening) device in order to obtain his DNA: “Was it clumsy? And did I cringe when I watched it?—Yes.”
Assistant D.A. Morris went on to argue an abandonment theory wherein an individual has no claim to an item like a soda can or cigarette butt that they discard which contains their DNA. Ms. Morris said at the very least if the police officers did not have probable cause for the search, they had at least had reasonable suspicion for the DUI stop they made after surveilling Mr. Vilchez Lazo in relation to 
their rape investigation.
Deputy Public Defender Sandy Feinland argued the fruit of the poisonous tree doctrine which states that evidence derived from a constitutional violation should be excluded from the case under what is called the exclusionary rule. The judge, however, ended up declining to rule on the constitutional violation and exclusionary rule application for the motion to suppress.
Instead, the judge, in ruling on the traverse issue, stated that the initial DNA violation was “not material to the probable cause finding the court made” in signing the challenged search warrant the police applied for after they had already obtained Mr. Vilchez Lazo’s DNA during a traffic stop five days prior to their application. There was a dispute between counsel and the judge as to what rulings were necessary at this hearing, with Mr. Feinland requesting explicitly that the judge rule on the underlying motion to suppress the evidence that is based in the fruit of the poisonous tree doctrine. “Both the People and the defense agree the court needs to make a ruling on the legality of the initial seizure of DNA,” Mr. Feinland explained.
The crux of the defense’s argument was timing. No investigatory steps were taken from the time that the DNA was obtained from the defendant on July 7, 2018, until the results were received on July 11, 2018. That same day that the results were received by police a photo-lineup was arranged and data was pulled on license plates in the 500 block of Howard from the prior surveillance they had done. Then the following day, July 12, 2018, the police applied for search warrants.
Judge Lam stated that he based his ruling on the multiple dates on which Mr. Vilchez Lazo’s license plate was recorded during surveillance and the driving patterns of the defendant which raised the suspicion to stop and identify him. The judge ruled that when disregarding the potentially illegally obtained DNA from the warrant affidavit there was still enough probable cause for the issuance of the search warrant and therefore the evidence obtained during those searches would not be excluded. The judge declined to make a ruling on whether the police had probable cause at the time they conducted the warrantless DNA search. In regard to the defense’s exclusionary rule argument, the judge stated that just because something happened after something else does not mean it flows from the illegality, seemingly acknowledging the collection of the defendant’s DNA at the DUI stop had been illegal conduct by the police.
