Suspect Orlando Vilchez-Lazo, 38, was arrested in July 2018 after San Francisco police said they pulled him over because they suspected he’d been drinking. By blowing into the breathalyzer, they obtained his DNA — which prosecutors say ties him to at least four rapes — one in 2013 and three last year.
A year after his arrest, Vilchez-Lazo’s attorney has filed a motion he says shows San Francisco police manufactured a reason to obtain their DNA sample.
This week, three police officers testified in San Francisco Superior Courtthere was no reason they wanted to pull Lazo over other than to obtain his DNA. Officer Jose Rosales told the court he lied to Vilchez-Lazo when he told him he’d been swerving on the road.
Deputy Public Defender Sandy Feinland argues police fabricated a reason to obtain DNA evidence that became the linchpin of the case. He called it a police “fishing expedition” in July 2018, when officers monitored area night clubs in a search for the serial rapist who posed as a Lyft driver.
SFPD officers Nicole Hicks and Jose Rosales-Renteria testified Monday they were instructed to assist with a suspicious vehicle report involving Vilchez-Lazo’s car near one nightclub.
Rosales-Renteria said after they spotted the vehicle, he radioed for an alcohol screening device to be brought to the scene. He testified he had no reason to believe Vilchez Lazo was drunk, and was told by an inspector, “I want his DNA.”
He said his superior, Sgt. Mark Lee, fabricated a reason to give Vilchez-Lazo for the stop — that he was swerving on the road. Lee denied that claim in his testimony Tuesday.
Feinland said Vilchez-Lazo blew a 0.0 into the breathalyzer device before officers ordered him to do it again, to obtain a saliva DNA sample. Prosecutors say the DNA ties him to all four rapes. Vilchez-Lazo has pleaded not guilty.
“After illegally detaining Mr. Vilchez-Lazo, police continued to hold him in order to get a sample of his DNA,” Feinland wrote in the motion. “Even though Mr. Vilchez-Lazo exhibited no signs or symptoms of intoxication, police detained Mr. Vilchez Lazo — for over twenty minutes — pretending to conduct a DUI investigation.”
The suspect has been held without bail on three counts of kidnapping, four counts of rape, two counts of sexual penetration with a foreign object and three counts of kidnapping to commit another crime.
Feinstein’s motion seeks to invoke a legal doctrine that requires all evidence obtained in an illegal search to be suppressed.
Prosecutors argue the search was not illegal because the mouthpiece used to administer the breathalyzer test should be considered discarded material, and therefore not subject to Fourth Amendment protections against illegal searches and seizures.
Assistant San Francisco District Attorney Lailah Morris Vilchez-Lazo’s rights were not violated — but the evidence should stand even if they were.
“Although SFPD did not yet know his identity, they embarked upon an investigation that was inevitably going to lead to only one person – Orlando Vilchez-Lazo,” Morris wrote in court records.
University of Massachusetts Amherst assistant professor Kathryne Young told UPI the Supreme Court ruling in Maryland vs. King established that police can take a person’s DNA after any lawful arrest, and Atwater vs. Lago Vista holds that anyone can be arrested for crimes as minor as not wearing a seat belt.
“This means police have broad leeway for DNA collection,” she said. “So while this case might give police new ideas about collecting DNA through breathalyzer tests, it’s hard to see how it would create any new legal precedent as long as the stops and/or arrests were lawful.”
Attempts by UPI to reach prosecutors were unsuccessful.