FL1: FDLE’s failure to remove DNA after acquittal in prior case wasn’t a separate 4A violation nor was it subject to the exclusionary rule

FDLE’s failure to remove defendant’s DNA from the state CODIS database after his acquittal in a prior case wasn’t a Fourth Amendment violation nor subject to the exclusionary rule to keep it from being used in this case. The evidence was properly seized in the first place, and there was no bad faith. Porter v. State, 2020 Fla. App. LEXIS 9305 (Fla. 1st DCA June 29, 2020):

We disagree with Porter’s argument that the “illegal retention” of his DNA record “constitutes fruit of the poisonous tree.” Regardless of whether FDLE was obliged to remove his DNA record upon receipt of the judgment of acquittal, the order to expunge, or the enactment of certain laws, any error by FDLE’s CODIS unit did not result in a search or seizure violative of the Fourth Amendment to the U.S. Constitution. Indeed, neither the procurement of the DNA sample from the crime scene nor the collection of Porter’s DNA during his prior incarceration was a search or seizure at all.

We are not ruling on the question of whether Porter’s DNA record should have been removed from CODIS prior to the commission of the instant offenses. In any event, a violation of a statute does not automatically compel the exclusion of evidence. See United States v. Caceres, 440 U.S. 741, 755, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979) (holding that in criminal prosecution “precedents enforcing the exclusionary rule to deter constitutional violations provide no support for the rule’s application” with respect to the violation of an IRS regulation concerning recording conversations between agents and taxpayers). Of course, a statute itself could require exclusion of evidence apart from the Fourth Amendment’s exclusionary rule. See United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974) (explaining that the issue of whether evidence obtained in violation of a federal wiretapping statute must be suppressed when no constitutional violation has occurred does not turn on the exclusionary rule, which is aimed at deterring violations of Fourth Amendment rights, but upon the provisions of the specific statute). However, Porter has not cited specific statutory authority, state or federal, for the suppression of the DNA evidence collected at the crime scene or obtained from him during his prior incarceration. Instead, he relies only on the exclusionary rule.

That rule has no applicability here. Neither the DNA discovered at the scene nor the DNA record stored by FDLE on CODIS was obtained by a warrantless search or seizure. The DNA at the crime scene was left by Porter in an area where he had no expectation of privacy. The DNA record stored on CODIS was lawfully obtained pursuant to section 943.325, Florida Statutes, which authorizes the collection of DNA from persons convicted of certain offenses. Absent evidence of an illegal search or seizure, there is no authority on which to suppress the evidence at issue pursuant to the exclusionary rule. See United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) (“The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens ‘to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. …’ Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.”). The retention of a lawfully obtained DNA record on CODIS for future use does not constitute a separate search or implicate the Fourth Amendment. See Boroian v. Mueller, 616 F.3d 60, 68 (1st Cir. 2010).

Importantly, there has been no suggestion that the officers involved in the investigation in this case acted in bad faith. …