Jail toothbrush can be evidence, DuPage judge rules
Once in jail, nothing's private anymore.
That was DuPage Circuit Judge Michael Burke's ruling Monday regarding the jailhouse toothbrush of an inmate being held for one crime and accused of another.
"It's not akin to holding him down and taking blood from him," Burke said. "A person does not have a reasonable expectation of privacy in a jail cell."
At stake is DNA evidence recovered from the toothbrush 22-year-old Larry R. Barrett was given by jailers in downstate Mount Vernon. Authorities say it links the Summit man to an October 2006 rape and home invasion in Downers Grove.
Barrett's public defender, Steve Dalton, argued his client's constitutional right to unreasonable search and seizure was violated when a Downers Grove detective asked the Jefferson County jailers to confiscate his jail-issued toothbrush after Barrett refused to submit to a DNA test.
Prosecutors advised police they lacked enough evidence to get a search warrant for the sample. The victim could not identify her attacker in a photo array and the accusation against Barrett came from an anonymous phone tip.
"To allow the state to seize his toothbrush creates a very slippery slope," Dalton said. "It means any person charged, but not convicted, would have no right to privacy. You could effectively get DNA from anyone locked up."
Dalton wanted the toothbrush evidence tossed out, and with it, statements made by his client after confronted with the DNA evidence.
"These were statements that were incriminating, but not an admission," Dalton said.
Barrett was locked up in Jefferson County on property damage charges. Downers Grove detectives interviewed him twice there. Besides gathering the DNA evidence, they also discovered tennis shoes worn by Barrett at the time of his arrest in that county matched impressions of shoes used to kick in the door at the Downers Grove rape victim's apartment.
Barrett is now charged in DuPage County with aggravated criminal sexual assault, home invasion and burglary.
Prosecutors said the victim did not know the assailant and offered no motive for the crime.