Police work under fire in rideshare case
San Francisco prosecutors said Friday that a former Lyft driver accused of being the notorious “Rideshare Rapist” should not be released, despite allegations that city police officers collected a critical DNA sample during a bogus sobriety check.
In a legal motion, the district attorney’s office maintained that the collection of Orlando Vilchez Lazo’s genetic material was proper — and that if it wasn’t, the cops would have eventually caught up with him anyway.
The question that a judge must decide, as soon as next week, is whether officers illegally searched Vilchez Lazo, 38, when they pulled him over last year and obtained his DNA without a warrant by allegedly making him blow into an alcohol screening device. A defense attorney called the tactic a fishing expedition, arguing the evidence is inadmissible.
Vilchez Lazo had allegedly been circling his car outside South of Market nightclubs — an area being watched by police intent on spotting the “Rideshare Rapist” — but the driver was sober when officers pulled him over, with no alcohol in his system.
At a hearing Monday in San Francisco Superior Court, prosecutors will argue that police lawfully obtained the DNA on July 7, 2018, linking Vilchez Lazo to four violent rapes and kidnappings over five years, and that the case should proceed.
Even if police violated Vilchez Lazo’s Fourth Amendment right against illegal search and seizure, the evidence should not be suppressed because investigators were following numerous leads that would have inevitably led to the suspect, wrote Assistant District Attorney Lailah Morris.
She said investigators had not only spotted Vilchez Lazo driving suspiciously around the South of Market neighborhood on several occasions, but had identified him and his vehicle through an automated licenseplate reader. Police had two potential email addresses and a phone number believed to be linked to him, she said.
“Even without the detention,” Morris wrote, “officers observed Defendant in his hunting ground on multiple occasions trolling for victims.”
She cited legal standards that make some evidence obtained in illegal searches admissible when prosecutors can show it would have been collected in other ways.
If a judge rules the search was illegal and suppresses the DNA evidence, other evidence collected against Vilchez Lazo after the traffic stop could also be tossed, under a doctrine known as the fruit of the poisonous tree.
When collecting a suspect’s DNA, law enforcement officers typically obtain a warrant from a judge before taking a blood sample or cheek swab. Investigators can also get DNA from a person by collecting discarded material such as a cup or cigarette butt.
Vilchez Lazo’s attorney, Deputy Public Defender Sandy Feinland, argued in a motion to suppress evidence that police fabricated the DUI stop and pulled his client over solely to collect his DNA. In fact, he asserted, one of the officers was recorded on his bodyworn camera cooking up an excuse for the stop: “Just say, ‘(he was) slightly swerving.’ ”
The attorney said the officer had Vilchez Lazo blow into the alcohol screening device twice in order to collect more saliva. His client, he said, had a blood alcohol content of 0.0%.
Morris admitted that one of the officers said Vilchez Lazo did not appear intoxicated, but conducted the test after an inspector “said that he needed the driver’s DNA.”
Legal experts said using a false pretext for a stop in which an officer’s goal is to collect DNA may be a violation of the Fourth Amendment. However, the standard for pulling someone over is whether an officer has reasonable suspicion the driver is intoxicated — a lower standard than the probable cause needed to get a search warrant.
In a case cited by Morris, a California Court of Appeal judge ruled in 2011 that police legally obtained a person’s DNA from the mouthpiece of an alcohol screening device.
But in that case, the court found police incidentally obtained the DNA while collecting a breath sample for a DUI investigation — making the mouthpiece a form of discarded material.
The “Rideshare Rapist” case began in 2013 when an unknown assailant posing as a driver for a ridehailing service began picking up intoxicated women outside nightclubs, raping them at knifepoint and then dropping them off.
Investigators collected matching DNA samples in four attacks. The profile, though, did not turn up any matches in federal databases of known offenders.
After alleging a match to Vilchez Lazo’s saliva, investigators wrote a series of search warrants and built a larger case against him. They arrested him July 12, 2018, five days after the traffic stop.
Vilchez Lazo has pleaded not guilty and is being held without bail in County Jail on four charges of rape, three counts of kidnapping, two counts of sexual penetration with a foreign object and three counts of kidnapping to commit another crime.
The case intensified worries about the security of customers using appbased ride services. The district attorney’s office has since launched a “Rideshare with Care” safety campaign.
Vilchez Lazo worked for Lyft at the time of his arrest, but was not using the platform when he committed his crimes, police said.
The revelation that he was in the country without authorization raised questions about Lyft’s background check process for drivers. The company said it has since strengthened its checks.