Orlando Vilchez Lazo is accused of sexually assaulting four women by posing as a ridehail driver. (Kevin N. Hume/S.F. Examiner)

Judge: ‘Rideshare Rapist’ warrants not based on legally questionable DNA evidence

Defense attorney seeking to throw out evidence obtained through fake DUI stop

After more than three days of testimony over whether police illegally obtained a DNA sample from the alleged “Rideshare Rapist,” a judge on Thursday said he needed further information before making a decision in the high-profile case.

A defense attorney has asked San Francisco Superior Court Judge Newton Lam to toss out the evidence against 38-year-old Orlando Vilchez-Lazo over concerns that police built their case on a phony drunk-driving investigation in violation of the Constitution.

Deputy Public Defender Sandy Feinland has argued that police pulled over his client in South of Market last July while on a “fishing expedition” for a man posing as a rideshare driver who kidnapped and raped four intoxicated women.

The officers who stopped Vilchez-Lazo made him take an alcohol-screening test simply to collect a sample of his saliva without a warrant, Feinland argued. The Fourth Amendment protects against unreasonable searches and seizures.

It turned out that Vilchez-Lazo had no alcohol in his system. But the saliva sample tied him to the series of rapes, and he was arrested outside his home in San Mateo five days after the traffic stop on July 11, 2018.

The case garnered attention last week when Feinland argued that search warrants police obtained after the traffic stop and all of the evidence officers gathered as a result of the stop were “fruit of the poisonous tree.”

He asked Lam to throw out the evidence and to invalidate the warrants.

But after days of testimony, Lam indicated Thursday that the legally questionable DNA evidence was irrelevant to his decision to sign the warrants.

Though police included information about the DNA sample in the warrant applications, Lam said he did not rely on the sample as a factor in his probable cause determination.

“I did not even think about the DNA,” Lam said in court. “I thought about all the detective work.”

Lam said police at least had reasonable suspicion to pull Vilchez-Lazo over as a suspicious vehicle if not for driving under the influence. Police investigators had seen him circling a block in South of Market where three of the four women were abducted.

Before administering the alcohol-screening test, police asked Vilchez-Lazo for his photo identification. That picture was later used in a photo line-up in which the victims identified Vilchez-Later as the rapist.

Lam said he was unsure if he would decide on the motion to throw out the evidence. He requested further arguments with regard to whether he made a mistake signing the warrants.

For three days this week, Assistant District Attorney Lailah Morris called officers to the stand as she sought to demonstrate the legality of the traffic stop.

Inspector Mark Lee, one of the lead investigators on the case, said he saw Vilchez-Lazo driving erratically and staring at groups of women outside a nightclub.

“He would flip a u-turn in the middle of the block,” Lee said in court. “He was speeding around the corners.”

Lee was the sergeant who made the decision to pull Vilchez-Lazo over and administer the alcohol-screening test.

He said he directed patrol officers to tell Vilchez-Lazo he was pulled over for a DUI so as to not tip him off about the rape investigation.

But Feinland cast doubt on his testimony.

“It’s somewhat shocking and astonishing that the prosecutor is trying to say and sell to the court that Inspector Lee was conducting a valid DUI stop and that’s what justified him have other officers tell Mr. Vilchez Lazo to blow into the (alcohol-screening device),” Feinland said in court.

One of those officers, Jose Rosales, testified during cross-examination that Lee told him to lie to Vilchez-Lazo about the reason for the stop.

Another officer said he raised questions to Lee while on scene about whether giving Vilchez-Lazo the alcohol-screening test to collect his saliva violated the Fourth Amendment.

“I was curious if there were any concerns,” Officer Colby Smets said in court.

Morris, the prosecutor, explained the testimony as miscommunications and differences in experience.

“They are just doing what they’re told,” Morris said of the patrol officers.

Morris said Lee had probable cause at the time to arrest Vilchez-Lazo as a suspect in the rapes if he wanted to.

He also had reasonable suspicion to pull him over for driving under the influence because of his driving and because a bottle of vodka was found at the scene of one of the crimes, Morris argued.

As for the tainted fruit argument, Morris contended that police would have ultimately identified Vilchez-Lazo as the alleged rapist.

Investigators also had other clues besides the DNA sample. The suspect had entered the address of one of the victims into Google Maps.

Months after the traffic stop, a search warrant based on the Google search returned with evidence that allegedly led to Vilcez-Lazo.

Lam did not set a date for the next hearing.

mbarba@sfexaminer.com

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