Ever since DNA testing became prominent, police have tried all sorts of ways to collect DNA samples from suspects when there was insufficient evidence to get a court order. One of the classic "tricks" is to offer a cigarette to a suspect and collect DNA from the saliva on the butt.
In People v. Gibson (Ct. App. 6/14/2011) (7-0), the police did just that. The circumstances of the collection, however, raised an "indelible right to counsel" question. The Defendant was suspected of a robbery. He was arrested on a bench warrant in an unrelated matter in which he had counsel. While locked up, the Defendant asked if he could see the detective, whom he was friendly with. The detective then had a conversation with the Defendant about general matters. Neither the robbery nor the unrelated criminal matter were discussed. During the conversation, the two smoked cigarettes. The detective later brought the cigarette butt to the lab for testing.
A unanimous Court of Appeals held:
[T]he detective here did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response. The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind."