• Search warrants and probable cause
• DNA evidence and a person of interest vs. probable cause 
• Residential trash can searches 

Legal issues: 

• Search warrants and probable cause 

For a search warrant to be legally sufficient, it need only be established that the information in the warrant’s affidavit establishes a fair probability that the search will uncover evidence of criminal wrongdoing. Probable cause for purposes of a search warrant affidavit requires that a “fair probability” exists that a search will uncover wrongdoing, i.e., something less than a preponderance of the evidence or even a prima facie case.  

• DNA evidence and a person of interest vs. probable cause 

A match of a person’s DNA with evidence obtained from a rape victim’s vaginal swabs, plus other suspicious circumstances, are sufficient to establish probable cause for a search warrant.  

• Residential trash can searches 

Searches of a resident’s trash can within the curtilage of a home (the area immediately around it), absent an exception (e.g., consent or an exigency), require a search warrant. 

In 1980, a 79-year-old woman was murdered in her Anaheim, California, apartment. She was found naked on her bed with legs spread apart and a pillowcase stuffed into her mouth. She had bruises on her body and bite marks on her lower chest and thigh. An autopsy revealed two broken ribs and tears to her vagina. She appeared to have been violently raped. The cause of death was listed as asphyxia. Vaginal swabs were subsequently taken and the resulting sexual assault “rape kit” was booked into evidence. No suspects were identified at the time as the case went cold.  

Then in 2002, the victim’s rape kit was retrieved from the Orange County Crime Lab by a forensic scientist, who extracted DNA from the victim’s vaginal swabs, creating a male DNA profile. Advances in DNA technology over the subsequent years enabled forensic scientists to further identify more genetic markers from the extracted cells.  

Finally, in 2020, cold case investigator Detective Julissa Trapp of the Anaheim Police Department was assigned to the case. Collaborating with the FBI, Detective Trapp had the unknown DNA profile sent to a private company (“DNA Solutions”) that was able to generate a “single nucleotide polymorphism” profile. (Author’s note: An SNP is defined as “A DNA sequence variation that occurs when a single nucleotide [adenine, thymine, cytosine, or guanine] in the genome sequence is altered and the particular alteration is present in at least 1% of the population.” It still makes no sense to me, but I added this for those of you who are into this stuff.)   

The digitized genetic data was then uploaded to something referred to a free genealogy website where an investigator may upload digitized genetic data in an attempt to find a match. This resulted in a DNA hit in 2021, with the FBI notifying Detective Trapp that Andre William Lepere had been identified as “a person of interest” (this term not being defined. See Note, below.) Some intense computer work by Detective Trapp located defendant as a resident of Alamogordo, New Mexico, at least as of 2021.  

Detective Trapp sought the assistance of Agent Eric Marrujo of the New Mexico State Police. Further investigation established some 1980 ties that the defendant had to the Anaheim area where the victim lived. First, it was shown that the defendant had been arrested in 1973 in Anaheim, when he listed his address as an apartment within three apartment complexes of where the victim lived. Also, it was noted that defendant’s mother had died in a car accident in 1982, and her address was in the same apartment complex where the victim lived. It was further established that the defendant had a rap sheet which included an arrest for attempted murder.  

Based upon this information, Agent Marrujo sought a search warrant for the defendant’s trash, with the idea that items might be recovered with the defendant’s DNA. In the warrant affidavit, Agent Marrujo concluded that Anaheim PD “Detective Trapp believes Andre Lepere is a suspect in the murder [of the victim] and a DNA sample needs to be collected from [Lepere] to compare his DNA to the profile from the victim’s vaginal swabs.”  

A New Mexico magistrate authorized the warrant which resulted in the recovery of beer cans and other items from the defendant’s outside trash can. The defendant’s DNA was found on one of the beer cans, and it was later found to match the DNA profile obtained from the 1980 Anaheim murder victim. The defendant was therefore arrested and extradited to California, where he was charged in state court with a special circumstance murder.  

Pretrial, the defendant filed a motion to suppress the evidence recovered as a result of the search warrant. His motion was denied – and with certain incriminating admissions he made upon being arrested introduced into evidence along with the DNA evidence – a jury found him guilty of murder and that the murder was committed during the commission of a rape. The trial court imposed a mandatory sentence of life?without the possibility of parole (LWOP). The defendant appealed.   

The Fourth District Court of Appeal (Div. 3) affirmed the trial court’s ruling. The issue on appeal (as it was in the defendant’s pretrial motion to suppress) was the legality of the search warrant for defendant’s trash can, i.e., was there sufficient probable cause to justify the issuance of the warrant? The trial court had ruled in the affirmative. The appellate court agreed. The basic rules are well established. The Fourth Amendment requires that for a search to be lawful, a search warrant authorizing the search must first be obtained (subject to certain exceptions not relevant here). Also, per the Fourth Amendment, the issuance of such a search warrant must be supported by “probable cause.”  

The problem is in determining how much information is required to establish the necessary probable cause. As noted by the appellate court: “The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate (who authorized the warrant) had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” In so noting, the court recognized that it doesn’t take much for there to be probable cause. The California “Supreme Court has held the probable cause threshold ‘is less than a preponderance of the evidence or even a prima facie case.’” (People v. Bryant, Smith and Wheeler?(2014) 60 Cal.4th 335, 370).  

When the New Mexico magistrate was confronted with Agent Marrujo’s warrant affidavit, his job was “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (People v. Kraft?(2000) 23 Cal.4th 978, 1040-1041).  

In evaluating the magistrate’s decision, the court noted that “(t)he search ‘warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence’ supporting the finding of probable cause.”?(Skelton v. Superior Court?(1969) 1 Cal.3rd 144, 150). And then, if all else fails, an officer’s “good faith,” acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, will prevent the suppression of the resulting evidence even if the probable cause falls a bit short, at least so long as the affidavit is not “so lacking in indicia of probable cause that an officer’s reliance on the warrant is objectively unreasonable.” (People v. French?(2011) 201 Cal.App.4th 1307, 1323).  

With these rules in mind, the court considered the warrant in this case, concentrating on the “probable cause” portion of the affidavit. In reciting his probable cause, Agent Marrujo averred that he was assigned to assist Detective Trapp with the 1980 Anaheim homicide investigation. The agent then provided what the court describes as “a fairly detailed?description of the crime scene.” He summarized the Orange County Crime Lab’s DNA investigation and the FBI’s recent involvement through “investigative genealogy.” The affidavit states: “On October 2, 2020…the unknown DNA profile was sent to?DNA Solutions to possibly develop a SNP (single nucleotide polymorphism) to assist with the investigative genealogy. On December 21, 2020, Detective Trapp received a report from DNA Solutions. The report stated DNA Solutions had been able to generate a SNP profile and had also been able to produce an SNP profile that was uploadable to [redacted]. [Redacted] is a free genealogy website that allows you to upload digitized genetic data.”  

Agent Marrujo continued in his affidavit: “On January 29, 2021, FBI Agents Steve Wrathall and Nina Vicencia contacted Detective Trapp to inform her that through genealogy, an investigative lead was generated that identified Andre William Lepere (DOB: 4/16/1957) as a person of interest in this case. Detective Trapp conducted numerous computer checks and learned Lepere currently had a listed home address in Alamogordo, New Mexico.” Agent Marrujo described the addresses the defendant and his mother were associated with in Anaheim near the victim’s residence at the time of the murder.  

Agent Marrujo concluded: “Based on the above information and details, Detective Trapp believes Andre Lepere is a suspect in the murder [of the victim] and a DNA sample needs to be collected from [Lepere] to compare his DNA to the profile from the victim's vaginal swabs.” The issue here is whether this information, as described above, was sufficient to supply the necessary probable cause to search the trash cans at defendant’s Alamogordo home.  

The court ruled in the affirmative. Aside from providing a possible DNA connection between the defendant and the 1980 murder, there was corroborating evidence that the defendant had been living and committing other crimes near the victim’s apartment in Anaheim near the time of the murder. The court found that with these facts considered in combination, this was sufficient to establish the necessary “fair probability” that defendant may have been the murderer, and that a search of a defendant’s outside trash “would uncover” circumstantial DNA evidence further linking him to the commission of the murder.  

Although the court noted that Agent Marrujo could have written a more fact-intensive description of “investigative genealogy,” the level of detail in the affidavit as described above was held to be “adequate.” The court wrote that perfection is not required, “Because they (i.e., affidavits) are often?written by nonlawyers in the midst of an investigation, technical requirements for elaborate specificity have no place in the review of search warrant affidavits” (People v. Varghese?(2008) 162 Cal.App.4th 1084, 1103).  

The court therefore held that “the New Mexico magistrate had a reasonable basis for issuing the search warrant, and the trial court properly denied (the defendant’s) pretrial motion to suppress the DNA evidence.” As a backup, the court further held that “even if we were to find the affidavit was not sufficiently detailed, under the good faith exception to the exclusionary rule, we would not find it necessary to exclude the evidence...(T)he officers executing the search objectively relied on the validity of the search warrant in good faith.”  

The gist of this opinion is that the courts don’t expect perfection when you write a search warrant affidavit. But this is not to be taken as permission to start getting sloppy or lazy. I’ve always advised cops that it’s better to put too much into your warrant affidavits than too little, assuming what you include is accurate and not misleading.  

In my reading of this case, I can see some validity in the defendant’s argument to the effect that the described probable cause was a little thin. A suspect’s DNA in a murdered rape victim does not eliminate the possibility of consensual sex at some time prior to the murder, which was in fact defendant’s defense at trial. Another appellate panel might have agreed with the defendant.  

So don’t push this envelope (i.e., writing thinly supported affidavits) too far or you might be the subject of a not-so-flattering published decision someday.  

On another issue, what I’d like to see in an appellate court decision some day is a legal definition to the term “person of interest.” I know of no court that has yet done so. This court does not. But the internet does. Per Google: A “person of interest” is “(a) person being monitored, sought, or?questioned?in connection with a criminal investigation or security operation, especially as a potential suspect.” The search engine goes further, citing an?assistant professor for Northeast State Community College’s Criminal Justice Department, Eric Stanton, in Johnson City, Tennessee, who ventured a definition without stating his source: “[Person of interest] is widely used to describe a person who may have been involved in a crime and who the police are interested in finding out more about, However, if they don’t have enough evidence to call them (sic) a suspect, they are not able to take action.”  

I take this to mean that not yet being a full-fledged “suspect,” a “person of interest” cannot be lawfully detained absent other evidence connecting him or her to the crime being investigated. The defendant in this case was initially referred to as a person of interest by the FBI to Detective Trapp, based apparently upon a “DNA hit” in 2021. Detective Trapp wisely sought other corroborating evidence that could be used to tie him to the murder, eventually converting Lepere from a “person of interest” to one who, at least circumstantially, appeared to be the murderer. Good police work by both Detective Trapp and Agent Marrujo.  

Lastly, you might be asking yourself this: “I thought you didn’t need a search warrant to search one’s discarded trash.” That rule only applies to trash cans that have been removed from the curtilage (immediate area) of the suspect’s house and placed out on the curb for collection. (California v. Greenwood (1988) 486 U.S. 35.) It does not apply to trash cans within the curtilage of the suspect’s home. All searches within the curtilage of a home, including a suspect’s trash, require a warrant, consent, or exigent circumstances. (Florida v. Jardines?(2012) 569 U.S. 1).