Aug. 8 2017 12:39PN No, 5302 P. INTHE CIRCUIT COURT OF 11" JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA STATE OF FLORIDA, CRIMINAL DIVISION Plaintiff, CASE NO.-: F17-3392 vs. JULIUS MUNOZ, Defendant, / ORDER DENYING STATE’S AMENDED MOTION FOR ORAL SWABS I. INTRODUCTION Defendant, Julius Munoz (“Defendant”), allegedly robbed a CVS using what appeared to be a firearm he removed from a black backpack. According to the State he “gave a full post-Miranda confession” and “led the lead officer to the location of the black backpack which contained a plastic firearm, a knife, the stolen currency, and the clothes he was wearing when he committed the crime.” ‘The State represents that this evidence was “processed” by crime scene personnel, and “DNA swabs [were] collected from the firearm and surfaces of the crime scene.” Though the State advised the Court that this evidence was subjected to DNA swabs it has not — and cannot — represent that any testable DNA was in fact collected. This is so because — according to the State — its lab does not confirm whether it has secured testable DNA until it receives a comparison sample, In 1Aug. 8. 2017 12:40PN No, 5302 P. other words, until the lab receives a defendant’s DNA it does not — as a matter of practice — determine whether any DNA was recovered from crime scene evidence. So at this point the Court does not know whether any crime scene DNA was actually found and — a fortifori — it cannot determine whether there is anything to ists that it is compare the Defendant’s DNA against. The State nevertheless i entitled to take a DNA swab from the Defendant because: (a) he agreed to patticipate in discovery; and (b) its proposed search is constitutional. The Defendant disagrees. In his view there is no doubt that DNA swabs are Fourth Amendment searches, and when a search is conducted for purposes of uncovering evidence of a crime the “usual standard of probable cause will apply.” Michigan v. Tyler, 436 U.S. 499, 508 (1978); Buges v. State, 693 So. 2d 57 (Ela, Sth DCA 1997) (arrestee had right “not to be subjected to an intrusive body search unless and until sufficient probable cause was shown to justify the search warrant”). Probable cause is lacking here — says the Defendant — because there is no “reasonable probability to believe that there is testable DNA on the evidence swabs” collected by crime scene investigators. As nothing suggests that testable DNA was in fact collected, Defendant also insists that af the present time there is no reasonable likelihood that his DNA swab will lead to the discovery of admissible evidence, Put simply, Defendant maintains that the “government may not compel a defendant’s DNA sample without first showing that sufficient DNA for comparison exists on the evidence itself.”Aug. 8. 2017 12:40PN No, 5302 P. IL ANALYSIS The issue here is the one of first impression, as no Florida appellate court has addressed the precise question of whether the State is entitled to take a DNA sample from a defendant absent a showing that testable DNA was obtained from other evidence. Two related inquiries are thus presented. First, is the taking of a defendant’s DNA under these circumstances a Fourth Amendment violation? Second, is this permissible discovery? A. Constitutionality ‘There is no question that using a buccal swab inside a person’s cheek to obtain a DNA sample is a search for purposes of the Fourth Amendment. Maryland v. King, 133 8. Ct. 1958, 1969 (2013) (“{iJt can be agreed that using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search”). This “‘intrusio[n] into the human body’ Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L-Ed.2d 908 (1966)” — however slight and painless as it may be — is an invasion of “‘cherished personal security? that is subject to constitutional scrutiny. Cupp v. Murphy, 412 US. 291, 295, 93 S. Ct. 2000, 36 L.Ed.2d 900 (1973) (quoting Terry v. Ohio, 392 US. 1, 24-25, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968)”). But as the Supreme Court observed in King, “[t}o say that the Fourth Amendment applies here is the beginning point, not the end of the analysis,” 133 S. Ct. at 1969, as “[t]he Fourth Amendment's properAvg. 8 2017 12:40PM No, 5302 P. 4 function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber, supra, at 768. Thus, the “ultimate measure of the constitutionality of a governmental search is ‘reasonableness. Id., citing Vernonia School Dist. 47J v. Acton, 515 US. 646, 652, 115 8. Ct. 2386, 132 L.Ed.2d 564 (1995), In King the Supreme Court addressed a Fourth Amendment claim advanced by a defendant who, after being arrested on assault charges, was required to provide 2 DNA sample pursuant to the Maryland DNA Collection Act. That statutorily authorized search led to a DNA match in an unsolved rape of which the defendant was then charged and ultimately convicted, The Maryland Court of Appeals vacated that conviction, finding that the DNA taken at booking was an unlawfal seizure, and that the provision of the Maryland statute authorizing such searches was unconstitutional because the defendant’s “expectation of privacy is greater than the State's purported interest in using [his] DNA to identify him.” 42 A.3d 549, 556 (2012). The Supreme Court disagreed, first pointing out that the legislative intent furthered by the Maryland statute is “one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” 133 S. Ct. at 1970. The court also emphasized the “right on the part of the Government, alwaysAug. 8. 2017 12:40PN No, 5302 P. recognized under English and American law, to search the person of the accused when legally arrested,” Id. citing Weeks v. United States, 232 US. 383, 392, 34 S. Ct. 341, 58 L.Ed. 652 (1914). This is so even absent individual suspicion, as “[tJhe fact of a lawful arrest, standing alone, authorizes a search.” Id. at 1971, citing Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S. Ct. 2627, 61 L.Ed.2d 343 (1979), In the King court’s view, collecting DNA for purposes of identification was — from a constitutional standpoint — no different from other “routine and accepted” means of identification such as the use of “fingerprint databases.” Id. at 1971, 1972. Aside from providing a reliable form of identification, the King court also noted that the collection of DNA evidence incident to arest furthers the government’s “substantial interest in ensuring that persons accused of crimes are available for trials,” and that DNA can assist in assessing whether an arrestee poses danger to the public and “inform a court's determination whether the individual should be released on bail.” Jd. at 1972, 1973. For these reasons, the court opined that “[ijt is reasonable in alll respects for the State to use an accepted database to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee.” Id. at 1974, After articulating the compelling governmental interests furthered by routine DNA collection, the King court then pointed out that “the intrusion of a 5Aug, 8 2017 12:41PM No, 5302 PF. 6 cheek swab to obtain a DNA sample is a minimal one,” and that the expectation of privacy of an individual taken into police custody “necessarily [is] of a diminished scope.” Id. at 1978, citing Bell v, Wolfish, 441 U.S. 520, 557 (1979). The court concluded that “DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen.” Jd. at 1978. Given an arrestee’s diminished expectation of privacy, and the fact that the “minimal intrusion” of a swab involves no risk of trauma or pain, the court concluded that “[a] brief intrusion of an arrestee's person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest.” Jd. Thus, “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Id. at 1980. Florida — like Maryland — authorizes the collection of a DNA at arrest and booking. See § 943.325, Fla. Stat. (2013); Smalley v. State, 889 So. 2d 100 (Fla. Sth DCA 2004). And there is no doubt this Defendant was arrested for a serious offense, and that his arrest was supported by probable cause. Law enforcement. therefore had the right to collect his DNA immediately upon detention. The question then is why should the State have less of a constitutional right to collect 6Aug. 8. 2017 12:41PN No, 5302 P. the same DNA now? The Defendant’s answer is because at this point the State is not secking the DNA as part of the routine booking procedure, but rather to “gather evidence for prosecution.” So according to Defendant, while his DNA could have been constitutionally collected as part of his routine booking, it cannot be collected now absent “probable cause” supporting a search. The Defendant’s “timing is everything” argument has in fact been embraced by two courts. State v. Gathers, 449 N.J. Super. 265, 156 A.3d 1108 (App. Div. 2017). In Gathers the trial court authorized a DNA swab “to determine whether defendant's DNA matches DNA that might be obtained from a handgun the State believes defendant unlawfully possessed.” Id. at 267. The appellate court reversed because — in its opinion — the reasonableness of a search is “judged differently if sought at the time of arrest rather than, as here, long after defendant's arrest.” Id. at 270, The Gathers court concluded that King did not support the constitutionality of a post arrest DNA search because “[w]hatever search incidental to defendant's arrest was necessary to meet [the concerns articulated in King] should have been satisfied long before the State filed the motion in question,” and because “the impact of an intrusion at the time an individual is arrested is not the same as when it occurs later, while the individual is awaiting trial.” Jd. at 271. For these reasons, the Gathers court again concluded that “[iming is everything,” and that even though the state could have constitutionally conducted 7Aug. 8. 2017 12:41PN No, 5302 P. this “search” at the time of the arrest, its request to do so while the defendant “resides in the county jail awaiting trial” was constitutionally “unreasonable.” Id. at 271, 274. In United States v. Davis, 65 F. Supp. 3d 1352 (M.D, Fla. 2014), ‘Magistrate Judge Frazier similarly concluded that King did not authorize a DNA. search “to see if it could be compared to the firearm that had been seized.” Id. at 1369. The Davis court found that “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,” and the proposed search was “for purposes other than those found proper in King.” Id. The Court does not necessarily agree with the timing line drawn in Gathers and Davis. At the outset it is clear — as the King court pointed out — that the collection of DNA, even as part of a routine booking procedure, may implicate the arrestee not only in the crime charged, but in other unsolved crimes — precisely what occurred in King, Indeed, the search found constitutional in King was no doubt intended — at least in part — to uncover evidence of criminal activity. That was in fact one of the compelling governmental interests highlighted by the King court en route to sustaining the constitutionality of the search. King, at 1973 (“[k]nowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court's consideration of the danger of the defendant to the alleged victim, another person, 8Aug. 8. 2017 12:42PN No, 5302 PF. 9 or the community”). The King majority obviously appreciated the fact that the collection of DNA — even as part of a routine booking —would often tie the arrestee to criminal activity. See United States v. Eldridge, 2013 WL 2635207 (W.D.NY, June 12, 2013) (“[ijt is unlikely that the Supreme Court was not mindful of the fact that a DNA sample taken upon arrest for identification purposes may be used to inculpate the accused of the crime for which he was arrested”). But that possibility did not render the search constitutionally infirm. Furthermore, other circumstances which impelled the King court to sustain a DNA search as part of routine booking procedures are present both at the time of the initial arrest and during the state’s prosecution. The arrestees “expectation of privacy” is the same (i.c., diminished), and the intrusion of a DNA swab remains “minimal.” King, at 1978. And this Court does not believe that the “indignity of being forced to provide a buccal swab” — whatever that may be — is materially different dependent upon the timing of the search. Gathers, at 271. There is therefore arguably no reason to conclude that a search to secure Defendant’s DNA is any less reasonable now than it would have been at the time he was arrested and booked. See, e.g, United States v. Proctor, 230 F. Supp. 34 1 (D.C. 2017) (applying King and granting motion to compel DNA swabs without a prior showing that testable DNA existed on other evidence); United States v. Haight, 2015 WL. 7985008 (D.D.C. Dec. 3, 2015).Aug. 8. 2017 12:42PN No, 5302 P. On the other hand, King addressed only the constitutionality of a statute that allowed the collection of DNA at arrest or booking, and the case certainly does not hold that a later search for DNA is per‘ se constitutional even absent probable. cause. The King court’s decision also was predicated in large part upon the fact that the collection of DNA at booking furthers “special law enforcement needs” that “diminish the need for a warrant” (i.e., probable cause); specifically, the need to identify and process “the persons and possessions” taken into custody. King, at 1969, 1970. ‘The King court also emphasized that at the time of arrest/booking, the “need for a warrant is perhaps least” because the search 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.’ ” Id, at 1970, citing Terry v. Ohio, 392 U.S. 1 (1968). Here, like in Gathers, the State does not suggest that its proposed search is motivated by a need to verify the Defendant's identity, ascertain his past criminal activity, or assess the potential danger to society if he is released. Like the government in Gathers and Davis, the State in fact concedes that it seeks Defendant's DNA for the sole purpose of comparing it to DNA that may have been found on crime scene evidence. But as the Davis court correctly conchuded, Florida Statute § 943.325 does not authorize DNA collection for that purpose. Rather, DNA samples collected at the time of arrest and booking “shall be used only for law enforcement identification purposes or to assist in the recovery or 10 10Aug. 8. 2017 12:42PN No, 5302 PF. 11 identification of human remains or missing persons...” § 943.325(13)(b), Fla. Stat. (2013). So just as in Davis, the State’s request here is not “compliant with the statute.” Davis, supra at 1369. While the issue is no doubt debatable, the Court concludes that King does not support a post arrest/booking search of Defendant’s DNA for purposes of linking him to the crime absent probable cause. This Court simply does not believe that King ushered in such a sea change in Fourth Amendment precedent. In the Court’s view King does no more than find constitutional a statute that authorizes DNA collection — at arrest and booking — for purposes of identification or other unique law enforcement needs, The decision docs not sanction DNA searches lacking probable cause when — as here — the sole purpose of the search is to try and link the defendant to the charged crime. As a result, the Court will employ settled probable cause jurisprudence to determine whether — given the factual circumstances presented — the State’s proposed search is constitutional. To find probable cause for a search the Court must conclude that there is a “fair probability that contraband or evidence of a crime will be found in a particular place,” United States v. Horn, 187 F.3d 781, 785 (8th Cir. 1999), an assessment that must be made in light of the “totality of the circumstances” United States v. Searcy, 181 F.3d 975 (8th Cir. 1999), using a common sense approach. The question then is whether there exists a “fair probability” that the waAug. 8. 2017 12:42PN No, 5302 P. 12 State’s requested DNA search will yield evidence linking the Defendant to the crime. The Defendant insists that absent a showing that testable DNA is available for comparison such a finding cannot logically be made, and probable cause for a DNA search is thus lacking, Most federal trial courts agree. See, United States v. Pakala, 329 F, Supp. 2d 178 (D. Mass. 2004); United States v. Robinson, 2011 WL 7563020 (D. Minn. Dec. 2, 2011) United States v. Marshall, 2012 WL 2994020 (W.D.N.Y. July 20, 2012); United States v. Myers, 2014 WL 3384697 (D. Minn. July 10, 2014).! In the earliest of these cases - Pakala — the court in fact ordered DNA testing subject to it being “determined by the laboratory to which the firearms have been sent that either or both of them contain a substance which yields a DNA profile sufficient for comparison.” 329 F. Supp. 2d 181, The Robinson court concurred with Pakala, finding a DNA test not supported by probable cause because “the Government has provided no evidence that it has as yet even tested the firearm at issue in this case to see whether there is any retrievable DNA evidence to which any comparison of the DNA sample seized from Defendant can be made.” Robinson, 2011 WL 7563020 at *3. The Myers court also agreed with Pakala (and Robinson), concluding that probable cause “requires a demonstration of a reasonable ground for belief that the Defendant's DNA may * Defendant also cites United States v. Acevedo, 2014 WL. 1326544 (D. Mass. Mar. 28, 2014), a case that does not address the precioe issue at hand, 12Aug. 8. 2017 12:43PN No, 5302 P. match what is found on the firearms seized by law enforcement.” Myers, 2014 WL 3384697 at *7. In contrast, two district courts have concluded, largely based on King, that because the “Fourth Amendment does not require individualized suspicion of criminal conduct to collect a saliva sample” from an arrestee, the government *need not make a representation that the [evidence processed contains] genetic material for testing.” Proctor, supra; United States v. Lopez-Castillo, 2016 WL 1611582 (D. Minn. Apr. 22, 2016) (‘{t]he mere fact that the supporting affidavit did not assert that the comparison DNA had yet been obtained from the methamphetamine or packaging did not render the warrant facially invalid...”), This Court finds persuasive — and agrees with — those decisions finding an absence of probable cause unless the government can represent that testable DNA has been collected on crime scene evidence and, as a result, there is something against which a defendant's DNA can be compared. Absent confirmation that testable DNA has been collected from other evidence, the Court simply cannot conclude that there is a “fair probability” the requested search will yield anything remotely relevant. To the contrary, without confirmation that testable DNA has been collected, a finding that Defendant’s DNA might reveal material evidence is supported by nothing other than pure speculation and conjecture; an observation supported by common sense as well as analogous Florida appellate precedent. For example, in Jones v. State, 343 So. 2d 921 (Fla. 3d DCA 1977) the trial 13Aug, 8 2017 12:43PM No, 5302 P14 court authorized the taking of “venous blood and saliva samples from the defendant” based upon the state’s claim that “it had ‘become important in the investigation to take venous blood and saliva samples for comparison and/or elimination ...”.” Id, at 923. The state’s motion contained “no factual allegations whatsoever to demonstrate that the ‘desired evidence’ would be found.” Jd. Put another way, the state offered no proof (or even an allegation) that it had collected genetic material to compare with the defendant’s. Absent such proof (or at least an allegation) the Third District concluded that the motion should have been denied. In contrast, the court in Doe v. State, 409 So. 2d 25 (Fla. 1st DCA 1981) sanctioned the removal and examination of a bullet lodged in the defendant’s leg because: (a) prior to being murdered the victim had fired four shots from a 32 caliber pistol; (b) the bullet in the defendant's leg was a 32 caliber bullet; and (c) x-rays were not capable of determining whether the bullet lodged in the defendant’s leg was fired from the victim’s gun. While the State here relies heavily upon Doe, the case actually supports Defendant’s position because the court did not sanction the search for the bullet based upon rank speculation, It authorized the search because the victim’s gun was available and, as a result, an examination of the bullet could demonstrate whether it was fired from that particular weapon. Had the victim’s gun never been located there would have been nothing to test the bullet against, and there is no doubt that probable cause 14Aug. 8. 2017 12:43PN No, 5302 P. for the surgical extraction (ie., the search) would have been lacking. Here the State has not confirmed possession of the analogue to the “weapon” that was in fact available in Doe (i¢., testable DNA). For the foregoing reasons this Court concludes that unless it is confirmed that testable DNA has been collected from crime scene evidence there is not a “fair probability” that the Defendant's DNA will yield evidence tying him to this crime. Thus, until the Court is advised that such testable DNA has in fact been collected, the State's proposed search is not supported by probable cause and therefore unconstitutional. B. Discovery Aside from the Fourth Amendment implication here, the Court also points out that it has discretion to limit even constitutionally permissible discovery, see Fla, R, Crim, P. 3.220(c), and that generally speaking it permits only discovery that is reasonably calculated to lead to admissible evidence. See, e.g., Siegel v. State, 68 So. 3d 281 (Fla. 4th DCA 2011) (“[iJn the discovery context, material means reasonably calculated to lead to admissible evidence”), Absent confirmation that testable DNA has been collected from crime scene evidence — and is therefore available for comparison — the Defendant’s DNA is not reasonably calculated to lead to the discovery of admissible evidence. So even if the State’s proposed search passed constitutional muster, the Court would still — as a matter of discretion over the scope of discovery ~ permit the collection of 15Aug. 8. 2017 12:44PN No, 5302 PF. 16 Defendant’s DNA if — and only if — the State were to confirm that its lab possesses testable genetic material. TM. CONCLUSION This Court fally appreciates the evidentiary value of DNA and understands that securing it from a defendant entails a minimal intrusion involving no risk of pain of trauma, But the Fourth Amendment requires probable cause for such a search no matter how valuable the material sought may be, or how slight and benign the encroachment. There is simply no constitutional exception for “easy” searches that may yield compelling evidence. And unless testable DNA has been collected, and is available for comparison, there is no probable cause to support a search to secure a defendant’s DNA for purposes of linking him to the crime. ‘There is also no basis to conclude that such discovery is reasonably calculated to lead to admissible evidence. This Court of course cannot tell the State — or its lab — how to allocate resources or conduct business, But it will not infringe upon a defendant’s constitutional rights — or permit discovery not reasonably calculated to lead to admissible evidence — simply because the State (or its lab) chooses not to confirm whether it has secured testable DNA until it receives a defendant’s specimen, The State’s (or its lab’s) preferred protocol will not trump an accused’s constitutional rights or this Court’s discretion in matters of discovery. Until and unless the State confirms the presence of testable DNA on some crime scene 16Aug. 8. 2017 12:44PN No, 5302 P. 17 evidence the search it requests is both unconstitutional and beyond the scope of permissible discovery, ‘The State’s “Amended Motion for Oral Swab” is DENIED. DONE AND ORDERED in Chambers at Miami-Dade County, Florida this 8" day of August, 2017. Circuit Court A Copies furnished to: Jared Whaley, Assistant Public Defender William Volet, Assistant State Attorney All Division 19 Assistant State Attorneys All Division 19 Assistant Public Defenders 17