Under Florida law, DNA is taken from certain types of offenders at the time of booking. The statute is constitutional under Maryland v. King. However, the taking of defendant’s booking DNA for “identification” (King) to link him to a gun found in the car during an otherwise valid stop was unreasonable. United States v. Davis, 2014 U.S. Dist. LEXIS 167334 (M.D. Fla. October 24, 2014), adopted 2014 U.S. Dist. LEXIS 167335 (M.D. Fla. December 3, 2014):
2) Conduct of the Law Enforcement Officers
Although the Court finds Fla. Stat. § 943.325 constitutional, it remains to be determined whether law enforcement’s conduct in this case complied with the statute and the Fourth Amendment. In this case, the Court finds that the Government failed to carry its burden of establishing that law enforcement’s conduct was not in violation of Fla. Stat. § 943.325 and the Fourth Amendment. The testimony presented at the hearing shows that a sample of Defendant’s DNA was not taken only for the purposes of identification as required by Fla Stat. § 943.325, but in furtherance of law enforcement’s case against Defendant for being a felon in possession of a firearm. Officer Petaccio testified that the police report written in connection with this incident specified that the buccal swab was obtained from Defendant for DNA comparison to the firearm by the Florida Department of Law Enforcement. (Tr. 44). Detective Hernandez also testified that the purpose for taking the buccal swab was to see if it could be compared to the firearm that was seized. (Tr. 55). Officer Petaccio and Detective Hernandez both testified as well that the DNA samples were taken for the purpose of identifying Defendant. (Tr. 52, 53-54). However, this testimony does not show that law enforcement’s conduct complied with Fla. Stat. § 943.325. Fla. Stat. § 943.325(13)(b) requires that the analysis of DNA samples shall be used only for law enforcement identification purposes. Thus, while the taking of Defendant’s DNA for normal booking identification purposes was compliant with the statute, the taking of his DNA to compare it to the DNA found on the firearm was conduct exceeding the scope of the search allowed under the statute.
The Government argues that “identification” encompasses not merely a person’s name, but also a broader investigatory use of DNA evidence. (Doc. 23 p. 7) (citing to Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) reh’g en banc granted, 686 F.3d 1121 (9th Cir. 2012) and on reh’g en banc, 745 F.3d 1269 (9th Cir. 2014)). Thus, according to the Government, Defendant’s DNA swab was used for the purpose of identification by linking Defendant to the crime of possession of a firearm by a felon. (Doc. 23 p. 7). The Court rejects the Government’s expansive construction in which “identification” is synonymous to “investigation.” Such a broad construction would enable law enforcement to take DNA samples under Fla. Stat. § 943.325 for purposes other than those found proper in King. In King, law enforcement connected King to the unsolved rape case when it entered his DNA profile into Maryland’s DNA database. King, 133 S.Ct. at 1966. The Supreme Court noted that “[t]he task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him.” Id. at 1972. In this way, information showing a link between the arrestee and the unsolved crime is essentially a by-product of the attempt to identify the arrestee through searching records law enforcement already has on hand. See id. (providing that searching official records is a “routine matter to produce a more comprehensive record of the suspect’s complete identity” and that finding occurrences of the arrestee’s DNA profile in outstanding cases is consistent with this common practice).
Such a search of public police records is not the case, here. There is no evidence that Defendant’s DNA was searched through any type of database that may be used to help the government to identify him or even connect him to any outstanding cases already on file. Instead, law enforcement appears to have directly compared Defendant’s DNA sample with the DNA evidence found on the firearm seized as part of Defendant’s arrest. This comparison in no way furthers the purpose of identifying Defendant, but only serves the investigatory purpose of determining whether Defendant was in possession of the firearm.
Additionally, the facts of this case give rise to Fourth Amendment concerns due to law enforcement’s discretion in taking the buccal swab samples. In King, the Maryland statute held constitutional deprived law enforcement of discretion in the taking of buccal swab samples. Thus, the Supreme Court remarked, “[t]he DNA collection is not subject to the judgment of officers whose perspective might be colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.” King, 133 S.Ct. at 1970 (citations omitted). Fla. Stat. § 943.325 requires that qualifying offenders shall be required to submit a DNA sample to a department-designated facility. The Court agrees with the Defendant that the statute contemplates an automatic and routine process where all felony arrestees will be required to provide a DNA sample. (Doc. 37 p. 8-9). This seems to be the understanding of the law enforcement officers who testified at the evidentiary hearing that a policy is currently being implemented that will require all felony arrestees to provide a sample. (Tr. 42-43). This policy was not in effect, however, at the time Defendant’s DNA sample was taken. (Tr. 30, 43). At the time Defendant’s DNA was taken, the decision to obtain a DNA sample was at the discretion of the officer on the scene and the detective. (Tr. 43). In this case, Officer Petaccio specifically testified that Defendant’s DNA was taken at his discretion. (Tr. 43).
