NAPLES — The Collier County Sheriff’s Office will not produce a DNA swab of a deputy accused during a trial of planting evidence against the defendant, the agency’s legal counsel told a judge on Friday.
Commander Mike Williams told Collier Circuit Judge Fred Hardt the agency would not take a cheek swab from Cpl. Johnny Joe Cisnero, a patrol deputy accused by the defense in a case that hinges on Cisnero’s discovery of illegal oxycodone after a traffic stop.
Hardt said he couldn’t demand the swab.
“I don’t believe I have the jurisdiction to order it,” he said.
Kelvin Shane Townsend, 33, faced life in prison on a felony drug trafficking charge when he went to trial in March. His attorney, David Agoston, earned a hung jury in the case after turning attention to Cisnero, a controversial 15-year veteran and target of 17 internal investigations alleging harassment and evidence planting. Cisnero has been exonerated in each.
Hardt scolded attorneys on both sides following the trial, and he asked why no DNA testing had been conducted on evidence to compare potential samples to Townsend or Cisnero. He also demanded the testing be conducted by the Florida Department of Law Enforcement instead of the sheriff’s office.
Agoston and Assistant State Attorney Chris Klink have since stipulated, or agreed, to testing on several pieces of evidence before the re-trial, including two pill bottles. But when Agoston asked for a DNA profile from Cisnero, the sheriff’s office balked. At the Friday hearing, Williams told Hardt the agency would not provide the swab.
“Deputies have the same Fourth Amendment rights as all citizens and the Collier County Sheriff’s Office will not compel its members to waive those rights,” the commander later stated in an email to the Daily News. “There is no evidence that Cpl. Cisnero has committed a crime. He is merely a witness in the case. If Mr. Agoston wants a DNA sample he should establish probable cause that a crime has been committed and obtain a warrant.”
According to testimony in the case, Townsend was a passenger in an SUV stopped on Rattlesnake Hammond Road at 6:36 a.m. on Feb. 18, 2010 by Cpl. Brian Wiedel.
After Wiedel and another deputy patted Townsend down for weapons, they discovered marijuana in the back of the SUV and placed him in a cruiser, handcuffed.
Cisnero then reached into Osborn’s car and pulled marijuana and a bottle of oxycodone from beneath Townsend’s seat.
In recordings taken from the scene and played for jurors, Townsend was livid. He pleaded with deputies, saying he was innocent, that he’d been searched twice and that Cisnero was setting him up.
The driver of the SUV, Daryl Ankney, 28, was convicted of driving with a suspended license.
Townsend is also charged with of misdemeanor marijuana possession. He remains on bond. If convicted of drug trafficking, he faces life in prison due to his status as a habitual felony offender.