Published on:

Can the State Take a DNA Swab from a Defendant in Florida Without Proof of DNA Evidence for a Comparison?

In Florida and other states, DNA can be a useful tool for the police and the prosecutors to use to determine who committed a crime.  It is not used nearly as often as one might expect from watching TV shows, but it certainly does come in to play in some cases.  The police might respond to the scene of a crime and collect samples of tissue in the hopes that they can compare the DNA of that tissue to a suspect, find a match and prove that the suspect either committed the crime or at least was present at the scene of the crime.

However, in order to make this comparison, the crime scene officers need to find usable tissue at the scene.  Secondly, the state needs to be able to collect DNA from a suspect to make the comparison with the evidence.  In the past, collecting DNA was more intrusive upon defendants and suspects.  More recently, a quick, simple and painless cotton swab of the inside of a person’s mouth can secure the DNA necessary for a comparison.  Because collecting DNA from a person is much less involved and intrusive than it used to be, courts are more likely to allow it since it is such a minor and unobtrusive procedure.

However, that does not mean the police or the state can just obtain a person’s DNA whenever they want or for whatever reason they want.  In a recent armed robbery case south of Jacksonville, Florida, the police collected a gun and a backpack that was apparently possessed by the armed robber.  They found a suspect and arrested him.  During the case, the state sought to obtain the defendant’s DNA by doing a cheek swab so his DNA could be compared to any DNA found on the gun or backpack.  However, due to the Florida crime lab procedures, probably based on budgetary concerns, the state could not say whether they had any DNA from the evidence to compare to the defendant’s DNA.  Apparently, the policy is to only determine if there is evidentiary DNA once they have DNA from a suspect.

The criminal defense lawyer argued that any DNA swab or other procedure is a search and seizure by constitutional standards.  Therefore, the police could only search the defendant and seize his DNA if there is probable cause to believe it will lead to admissible evidence or evidence will be found.  Since the state could not show there was any DNA with which to compare the defendant’s DNA, the state could not prove the defendant’s DNA would lead to the discovery of any relevant evidence.  In other words, the state could not give any legal purpose for the defendant’s DNA since the state could not show it was able to compare it with anything.  The court sided with the criminal defense lawyer.

This was the correct legal conclusion under search and seizure law.  The odd thing is that this situation could have been avoided in two ways.  First, if the Florida crime lab simply tested the evidence first to see if there was any DNA for a comparison, the state would have likely had probable cause and could have obtained the defendant’s DNA.  I would hope the crime lab would do that in cases that are serious enough to warrant it.  Secondly, Florida law allows police to obtain the DNA cheek swab when they arrest people and book them into the jail.  Apparently, that simple routine was not followed in this case.