Wrongful Appropriation – Borrowing without Permission

If someone is found to be borrowing property that doesn’t belong to them and does it without the owner’s permission it is known as wrongful appropriation.

Wrongful appropriation

Wrongful Appropriation

Photo by: Victor

Utah code 76-6-404.5 defines wrongful appropriation as when a person “obtains or exercises unauthorized control over the property of another, without the consent of the owner or legal custodian and with intent to temporarily appropriate, possess, or use the property or to temporarily deprive the owner or legal custodian of possession of the property.”

Borrowing without permission or theft?

Wrongful appropriation may sound a lot like stealing however the keyword that sets it apart from theft is the word “temporarily”. Although many cases of taking another’s belongings is done with the intent of never returning said property, occasionally the person accused of stealing can prove that their intention was to simply borrow the property on a temporary basis. When a person has been determined to not be permanently trying to deprive someone of their property but borrowing property without permission instead, Utah Code 76-6-404.5 states this crime to be “punishable one degree lower than theft.”

Wrongful Appropriation

Photo by: William Murphy

Examples of wrongful appropriation

Borrowing an item without permission may be hard to prove, but there are instances where the temporary intent may be more apparent such as:

• Borrowing a vehicle to quickly run an errand,

• Taking yard care equipment to use temporarily,

• Taking someone’s property as a practical joke, or

• Deviating from an assigned route in a government vehicle for personal motives.

Proving non consent

Sometimes when an item is borrow and relationships between the two parties go sour, the individual loaning the property, in an attempt to stir up trouble, may claim to have not given permission to the other. Having proof of the loan agreement would help protect the borrowing party from being unfairly charged with wrongful appropriation. Unless performed by a business however, a borrower’s agreement isn’t likely; for this reason it is recommended to seek counsel from a defense attorney for any charges of wrongful appropriation, whether true or not.

Family Member’s DNA Used to Track down Murder Suspect

A family member’s DNA was used to track down the suspect of a murder case that took place in Tooele, Utah in 2011.

Beaten with a hammer

Photo by: Alan Cleaver

Photo by: Alan Cleaver

On October 7, 2011 the body of 69 year old Evelynne Derricott was found in her Tooele, Utah home. State medical examiners determined the cause of death to be repeated blows to the head with a hammer. Investigators on the case believed the widow was attacked after she surprised a burglar when she returned home.

No Match for DNA

Authorities were able to locate the blood of someone other than Derricott on the handle of the murder weapon along with a sample from the same person inside Derricott’s vehicle which was located in a nearby neighborhood. The DNA was determined to be that of a male, yet it was not in the system; leaving investigators with no suspects.

Familial DNA

After pursuing all other leads, police were determined to not let the case become cold and ordered a pricey test to check for familial DNA.  According to the FBI, “familial searching is a deliberate search of a DNA database conducted for the intended purpose of potentially identifying close biological relatives to the unknown forensic profile obtained from crime scene evidence. ( . . . ) first-order relatives, such as siblings or parent/child relationships, will have more genetic data in common than unrelated individuals.” It is determined that nearly half of all new offenders have a close family member who is already in the criminal database. Once an immediate family member’s DNA is entered in the system after being convicted of a class A misdemeanor or felony, other close family can be located by identifying similarities in their genetic makeup.

Match found

DNA

Photo by: AJC ajcann.wordpress.com

After running a familial DNA test on the blood found on the hammer and vehicle in the murder of Evelynne Derricott, authorities discovered a match and were able to trace the family ties to 23 year old Rogelio Diaz Jr. of West Valley City, Utah. Diaz has not previously been convicted of a charge high enough to have him entered into the criminal database, but a sibling or a parent had. Nearly five years after Derricott was killed, authorities finally had their number one suspect. Diaz is now facing first degree felony murder, first degree felony aggravated burglary, and second degree felony theft.

Problems with familial DNA

There are some issues that arise when using familial DNA. The first is the cost associated with the testing which typically runs over $5,000 per test. This is a hefty amount for the state to spend on a test that isn’t guaranteed to work. This brings up another problem with familial DNA: there is a 50/50 chance of finding a familial match. Additionally, familial DNA tests cannot even be an option unless there is a significant amount of sample available to run a series of tests. For these reasons, familial DNA is usually used only as a last resort and primarily for violent cases where the public might still be at risk of harm.

Volunteered or court ordered

If a familial match links to someone on investigator’s radar, the Fourth Amendment protects said person from having to volunteer a DNA match unless they have been court ordered to do so. A judge will not order a DNA test on a suspect unless there is enough probable cause to link that suspect to the case. Many individuals fail to realize that although they must be cooperative with law enforcement, they are not required to give up evidence that could implicate themselves. Of course, leaving DNA in a public place is considered voluntarily, which was the case with Diaz who left his finished drink in a public trash can. Anyone being questioned by law enforcement or facing criminal charges is encouraged to receive counsel from a criminal defense attorney that understand their constitutional rights, and will protect them from illegal searches and seizures of property including their DNA.

Questionable DNA Evidence Gathering Upheld by Supreme Court

Questionable DNA evidence gathering upheld

Photo: Public Domain Pictures

Most people know that if a crime has been committed and fingerprints are left behind, detectives can inspect those fingerprints to determine if you are a match and therefore committed the crime. Other evidence commonly gathered may be blood, saliva, or semen. However, a recent case in Maryland brought the issue of DNA evidence gathering under the spotlight. In the case, after a suspect voluntarily came into a police station for questioning on a rape case, the police swabbed the armrests of the chair he was sitting in for skin cells to test DNA, leading to his conviction. The man took his case to the Maryland Court of Appeals, which upheld the conviction. He appealed to the Supreme Court of the United States (SCOTUS), but they denied the request for review.

The Case was Closed, but was it Lawful?

According to an article in ARS Technica, in 2006 a Maryland woman was raped in home. Police interviewed approximately 20 suspects over the course of two years in an attempt to locate the perpetrator. Each of the suspects voluntarily provided DNA samples to the police, but none of them matched the genetic material from the crime scene.

However, Glenn Raynor, a former classmate of the victim and man who matched the physical description of the suspect, refused to provide a sample of his DNA. However, he did voluntarily come into the police station, spoke with police, and stated that he was not the rapist.

After Raynor left, police swabbed the armrests of the chair where he had been sitting. They were able to gather skin cell DNA evidence which they used to link Raynor to the crime scene. In his trial, Raynor moved to suppress the DNA evidence, claiming it was a violation of the Fourth Amendment, which protects against unreasonable search and seizure without a warrant. In order to obtain a warrant, there must be probable cause, and Raynor claimed they didn’t have the probable cause necessary.

The DNA evidence was allowed in the case, and Raynor was sentenced to life in prison. He took the case to the Maryland Court of Appeals, which upheld the conviction on a 4-3 vote, and on Monday, March 2, without any comment, SCOTUS refused to review the case.

Concerns Regarding Questionable DNA Evidence Gathering

In addition to Raynor taking his case to the Supreme Court, the Electronic Frontier Foundation (EFF) also filed an amicus [friend of the court] brief, urging the Supreme Court to accept the case.

According to an article on the EFF website, they are claiming that DNA evidence used in cases like Raynor v. Maryland are violating people’s Fourth Amendment right to privacy regarding their personal genetic material.

“As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be,” EFF Senior Staff Attorney Jennifer Lynch said. “The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance.”

They went on to say that just because the cost of DNA evidence analysis technology is dropping doesn’t necessarily mean that it should be used more. They pointed to the fact that in some cases, DNA “can allow police to identify a person’s relatives, turning family members into inadvertent ‘genetic informants’ on each other.”

In 2013, in a similar case from Maryland, the Supreme Court ruled by a 5-4 vote that police may take a DNA sample from someone who has been arrested without the need for warrant. However, Raynor’s attorney, Byron Warnken, said the same shouldn’t apply to his client because Raynor was not under arrest at the time.

In the Maryland Court of Appeals, the dissenting judges said the case of Raynor v. Maryland set a dangerous precedent.

“The Majority’s approval of such police procedure means, in essence, that a person desiring to keep her DNA profile private, must conduct her public affairs in a hermetically sealed hazmat suit. Moreover, the Majority opinion will likely have the consequence that many people will be reluctant to go to the police station to voluntarily provide information about crimes for fear that they, too, will be added to the CODIS database…. The Majority’s holding means that a person can no longer vote, participate in a jury, or obtain a driver’s license, without opening up his genetic material for state collection and codification. Unlike DNA left in the park or a restaurant, these are all instances where the person has identified himself to the government authority.”

However, the majority for the alluded to the concept that leaving behind DNA is like leaving behind a fingerprint and is therefore fair game.

“In the end, we hold that DNA testing of the 13 identifying junk loci within genetic material, not obtained by means of a physical intrusion into the person’s body, is no more a search for purposes of the Fourth Amendment, than is the testing of fingerprints, or the observation of any other identifying feature revealed to the public—visage, apparent age, body type, skin color.”