Edward J. Nowak, Public Defender (
David Duguay of counsel), for defendant.
Howard R. Relin, District Attorney (
David Foster of counsel), for plaintiff.
OPINION OF THE COURT
JOHN J. CONNELL, J. The defendant, claiming to be aggrieved by an unlawful search and seizure, has moved to suppress physical evidence seized by members of the Gates Police Department on August 27, 2002. A pretrial suppression hearing was conducted before me on this issue on March 3, 2003.
Findings of Fact
On August 27, 2002 the defendant was in a Gates Police Department holding cell after having been arrested on burglary, robbery and sexual assault charges concerning an August 26, 2002 incident. At approximately 2:27 A.M. Officer Brian Ritchie of that department gave the defendant a Coca-Cola and a cigarette at the defendant's request. Officer Ritchie had no conversation with the defendant concerning the charges against him. At 3:09 A.M. Officer Ritchie brought the defendant to an interview room to speak with Investigator Conradt. Before bringing him to the interview room, Officer Ritchie asked the defendant if he wanted anything to eat. The defendant accepted his offer for one of the microwave dinners that were available for prisoners at the police department. Between 3:09 A.M. and 3:24 A.M., while the defendant was in the company of Investigator Conradt, Officer Ritchie prepared the dinner. Upon his return to the holding cell at 3:24 A.M., the defendant was given the dinner and a plastic spoon with which to eat it. The defendant dined until 3:40 A.M., at which time Officer Ritchie asked him if he was finished with the meal. When the defendant responded that he was finished, the officer took the plate and spoon from the defendant. He then secured the spoon as evidence for DNA testing. At the time the meal was given to the defendant, Officer Ritchie did not intend to collect the spoon. However, between 3:24 and 3:40 A.M. his lieutenant directed him to secure the spoon for DNA testing. Not surprisingly, the normal procedure would have been to dispose of the spoon and the plate in the trash. At the time the meal was provided to the defendant, Officer Ritchie was aware that the defendant had asserted his Miranda rights to Investigator Conradt and was not being interviewed further about the allegations.
Conclusions of Law
The defendant seeks suppression of the plastic spoon and the results of DNA testing on the spoon claiming that by providing the food and utensil and securing them after the meal was completed "law enforcement personnel violated fundamental principles of fairness," which "were consciously conducted to Accordingly, the defendant's motion to suppress the spoon seized by the police as well as the DNA test results obtained from the spoon is in all respects denied. This case is now placed on the trial calendar with a day certain of May 5, 2003.