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A new case has come out of the circuit court in Miami denying the State’s Motion to Obtain Oral Swabs from a gentleman who was charged with robbery of a drug store with a firearm. According to the State, he “gave a full post-miranda confession” and “lead officer to the location of a backpack which contained a plastic firearm and the stolen currency and the clothes he wore when the crime was committed.”

The State wanted to get a DNA swab from the gentleman.

The court kept the State from obtaining the oral swab because the lab which received his DNA as a matter of practice never determined whether any DNA was recovered from the crime scene evidence. The court therefore stated that it did not know whether any crime scene DNA was actually found.

The court then posed two questions

(1) Is taking a defendant’s DNA under these circumstances a Fourth Amendment violation?

(2) Is this permissible discovery if the defendant is in both discovery under Rule 3.220 of the Florida Rules of Criminal Procedure?

The court, after noting that this is a Florida case of first impression, held that to have to produce the swab was a violation of the Fourth Amendment because it requires probable cause for such a search no matter how valuable the material sought may be, or how slight and benign the intrusion. There is simply no exception for easy searches that may yield “compelling evidence.” The court concluded “that there is also no basis to conclude that such discovery is reasonably calculated to lead to admissible evidence.”

Hats off to the lawyers who litigated this down in Miami and undoubtedly this case will proceed through the appellate courts and will be raised by any competent lawyer who is aware of this decision.