New Defense Warning: Don’t Brush?

Don't talk to police. Don't talk to your cellmate. And, whatever you do, don't brush your teeth.

This could soon be standard advice from criminal defense lawyers to clients, if a recent Illinois evidentiary ruling is any indication. An accused rapist who refused to give a DNA sample has nonetheless been linked by DNA evidence to the crime, after authorities got what they needed from his toothbrush while he was being held in jail in southern Illinois on an unrelated misdemeanor charge, reports the Chicago Tribune.

Although counsel for defendant Larry Barrett challenged the toothbrush DNA test as an unconstitutional search and seizure under the Fourth amendment, DuPage County Circuit Judge Michael Burke ruled after a hearing Monday that it could be used as evidence in Barrett's rape case, the newspaper writes. Authorities, who argued that probable cause wasn't required to search Barrett's cell, didn't get a warrant until after they had established a link between Barrett's DNA and the rape with which he is charged.

"Somebody held on a misdemeanor offense ... doesn't lose his privacy rights because he can't post bail," argued Steve Dalton, who works as a DuPage County senior assistant public defender. But Burke said the prisoner had no reasonable expectation of privacy while he was in jail. "This is not akin to holding him down and taking blood, collecting saliva, pulling hair," the judge said. "That is a different issue."

Albert Alschuler, a professor at Northwestern University School of Law, describes the issue as complicated and says it is one that Barrett might win on appeal. "I think the prisoner has a substantial argument," he tells the Tribune. "If the authorities had probable cause for securing a DNA sample—and the standard might be less than probable cause—they were dumb not to play it safe by getting a warrant."