Carlos Samour Pens First Dissent as Supreme Court Justice

Samour splits from majority over applicability of Heien v. North Carolina

In his first dissent for the state’s highest court, Colorado Supreme Court Justice Carlos Samour delivered a rebuke of the majority’s holding in Casillas v. People that an unlawfully collected cheek swab of a juvenile offender should be suppressed as DNA evidence later used to convict the same person of an unrelated crime.

In the underlying case, petitioner Ismael Casillas had his cheek swabbed by a juvenile probation officer to collect his DNA. But the DNA collection violated the Colorado statute governing deferred adjudication of juvenile offenders because under they law they typically do not have to submit to a DNA sample.

Months after Casillas fulfilled the terms of his deferred adjudication and his juvenile case was dismissed, his DNA was used to link him to a carjacking. Casillas requested suppression of the DNA evidence in his trial because the probation officer had collected it unlawfully, violating his Fourth Amendment rights. The trial court denied the motion, and Casillas challenged the suppression ruling on appeal.

The parties have not disputed that the cheek swab done by Casillas’ supervising probation officer constituted an illegal search under the Fourth Amendment, and also violated Colorado law that exempts offenders such as Casillas from submitting DNA samples. The Court of Appeals made the same conclusion. But the court nevertheless upheld the suppression ruling in 2015, holding suppression was not appropriate because the juvenile probation officer performed “nothing more than a supervisory function under the direction of the juvenile court,” and moreover, suppression “would have no deterrent value” for future violations of protections against unlawful searches. Suppressing evidence from illegal searches by law enforcement is intended to deter police misconduct, and courts must weigh the benefits of allowing the evidence against the possible harm it could cause.

But the Supreme Court cited three main factors in overturning the Court of Appeals ruling. The court disagreed with the People’s reliance on precedent cases that involved law enforcement officers reasonably relying on information to conduct searches provided by third parties that later proved inaccurate. In those cases, police did not have reason to question the validity of the information they relied on, and so suppression of resulting search evidence would not serve to deter future police misconduct.

“Nothing in the record here, however, suggests the juvenile probation officer who performed Casillas’s cheek swab did so in reasonable reliance on misinformation provided by a third party,” wrote Justice Monica Márquez for the majority. “The error giving rise to the unlawful search and seizure was not attenuated; suppression here would target the officer’s own mistake, not someone else’s.”

To read this story and other complete articles featured in the October 1, 2018 print edition of Law Week Colorado, copies are available for purchase online.