On February 13, 2015, the Fifth District Court of Appeal decided the case of Oliver v. State, 2015 WL 585536 (Fla. 5th DCA 2015). In Oliver, the defendant was a passenger in a vehicle that was stopped for an inoperable tag light. The stop itself was not challenged on appeal. After the stop, the officer, in an aggressive manner, ordered the defendant to "keeps his hands on the f***ing dashboard." After a canine sniff alerted the officers to the presence of drugs in the car, the officers searched the defendant and found marijuana and a firearm on his person.
In Maryland v. King, ___ U.S. ___ (June 3, 2013) the Court upheld the warrantless swabbing of individuals arrested for what the Court characterized as "serious" offenses. Left open by the Court's decision are the questions of 1) what constitutes a serious offense; and 2) whether the warrantless seizure of DNA samples is permissible for individuals convicted of misdemeanor offenses, which, by definition, can result in incarceration of one year or less. Unfortunately, as the result of the Court's sweeping language in the King decision, lower courts may have a difficult time in distinguishing between a "serious" offense justifying the warrantless sampling of DNA evidence and the routine misdemeanors for which hundreds of thousands of people are arrested for or convicted of every year in this country. Thus, what the Court apparently views as a non-intrusive law enforcement practice may have a much greater impact on the constitutional rights of individuals than the Court could have envisioned, a problem highlighted by Justice Scalia in his dissent.