CA11: State court DNA consent finding was reasonable under AEDPA

The 2254 CoA was granted as to a DNA consent after invocation of the right to remain silent in a death case. “As to the DNA consent, Everett has not demonstrated that the Florida Supreme Court’s decision—that the request for consent to collect DNA samples did not violate his Fifth Amendment rights—‘was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at __, 131 S. Ct. at 786-87.” Everett v. Fla. Dep’t of Corr., 2015 U.S. App. LEXIS 3027 (11th Cir. February 27, 2015)*:

Second, the Florida Supreme Court also reasonably concluded that the request for DNA consent did not amount to interrogation. Everett I, 893 So. 2d at 1286. The privilege against self-incrimination extends only to compelled testimonial communications, which are those communications that relate a factual assertion or disclose information. Doe, 487 U.S. at 207, 210, 108 S. Ct. at 2345, 2347. Thus, neither the furnishing of consent to collect DNA, nor the DNA evidence itself, is testimonial or communicative. See id. at 210, 108 S. Ct. at 2347. In addition, DNA collection by police is not interrogation of a suspect because it is not reasonably likely to elicit an incriminating verbal response. Accordingly, the Florida Supreme Court reasonably concluded that the request for DNA consent—even though it followed Everett’s invocation of his right to counsel under Miranda—did not violate his Fifth Amendment rights.

This entry was posted in Consent, DNA. Bookmark the permalink.

Comments are closed.