West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

         Earlier this month, Florida's governor, Charlie Crist, signed Senate Bill 2276 which permits the police to take a DNA sample from anyone who is merely arrested for a felony offense. 

          In an article entitled "Crist signs law ordering DNA tests for all arrested in felonies, raising privacy fears," Palm Beach Post staff writer Dara Kam observed that a Minnesota appellate court held a similar law to be unconstitutional.  This article examines why that Minnesota law was found to be unconstitutional since the arguments raised in that case will undoubtedly be raised by those seeking to have Florida's new DNA law declared unconstitutional.

         In the case of In the Matter of the Welfare of:  C.T.L, Juvenile, the Minnesota appellate court began by noting the often-stated principle of constitutional law that searches (which includes taking someone's DNA) conducted by the police without prior approval by a judge or magistrate are unlawful under the Fourth Amendment to the United States Constitution unless there exists an exception previously recognized by the courts.  Minnesota's law, however, allowed the police to take DNA samples from anyone arrested for a felony even though a judge had not previously determined that there was a fair probability that the search would produce evidence of a crime.  Under Minnesota's law, "it is not necessary for anyone to even consider whether the [DNA sample] to be taken is related in any way to the charged crime or to any other criminal activity."  For that reason alone, the statute was unconstitutional.

          However, the Court continued on to provide still another reason why the Minnesota law at issue was unconstitutional.  It began by observing that persons convicted of crimes have a reduced expectation of privacy which does not outweigh the Government's interest in DNA testing.  But the privacy interest of a person who has simply been charged but not convicted of a crime is not outweighed by the Government's interest in DNA testing.

          It will be interesting to see what constitutional arguments are raised by the opponents of Florida's new DNA law in the months and years to come.  The arguments discussed in this article will undoubtedly be among them.

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          In 2006, political commentator Rush Limbaugh was charged with committing the crime of Withholding Information from a Practitioner.  On May 1, 2006, Limbaugh entered into a Deferred Prosecution Agreement with the Office of the State Attorney.  According to that agreement, the State Attorney's Office agreed to drop his case if he successfully completed the Pretrial Intervention Program.

          Conditions 1 through 10 and condition number 12 are all standard conditions of a deferred prosecution agreement.  Condition number 11, however, is a special condition requiring that Limbaugh pay costs of investigation totaling $30,000.  Moreover, he had to pay that $30,000 within 90 days of signing the agreement.  That is an unusually large amount of money to pay for costs of investigation; but then again, it was Rush Limbaugh whom the police were investigating.  (It is also an unusually short period of time in which to pay such a large sum of money; but then again, it was Rush Limbaugh who was writing the check.)

          Did Limbaugh successfully complete all of the requirements contained in the deferred prosecution agreement including the payment of $30,000?  Apparently so.  According to court documents, the State Attorney's Office dropped his case on November 5, 2007.

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          It is an all-too-frequent occurrence in Florida's criminal courts that a judge will set a bond in a given case, yet the accused individual continues to remain in jail because he cannot afford to pay that bond.  That is precisely what happened in the case of Stallings v. Ryan which arose in Miami.

          David Stallings actually had two different cases.  In the first case, he was charged with 22 counts of sexual battery on a victim under the age of 12 and 21 counts of sexual battery/engaging in a sex act with a family child under the age of one.  In the second case, he was charged with 30 counts of sexual battery on a victim under the age of 12 and 29 counts of sexual battery/engaging in a sex act with a family child under the age of one.

          Because Stallings was being held in jail without any bond at all, he asked the trial judge to set a reasonable bond.  The judge held a hearing but ordered that Stallings continue to be held without any bond.  Stallings appealed that ruling to Florida's Third District Court of Appeal which, in turn, ordered the trial judge to set a reasonable bond.  In response, the trial judge set a monetary bond for both cases totaling $910,000.

          Stallings then filed a second petition for writ of habeas corpus in which he argued that such a high bond was unreasonable and excessive in light of the appellate court's prior ruling.  The Third District Court of Appeal once again agreed with Stallings and this time ordered that the trial judge set a reasonable bond of no more than $100,000.  In so doing, the Third District Court stated that "the law is well-settled that excessive bond, depending on the financial resources of the defendant, is tantamount to no bond at all.  Based on [Stallings's] financial resources, the bond set was clearly excessive and tantamount to no bond.  Furthermore, in light of [Stallings's] proven strong ties to the community, compliance with prior court orders, and ownership of residential property, which can be used as collateral for a reasonable bond, the present bond amount [of $910,000] is unwarranted."

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          In the case of New Jersey v. T.L.O., the United States Supreme Court stated that "[u]nder ordinary circumstances, a search of a student by a school or other school official [is permitted] when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."  However, in the case of A.H. v. State of Florida, the Fifth District Court of Appeal stated that the prosecution is still "required to elicit specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion."  If the prosecution cannot present such facts, then the evidence should be suppressed.

          In the case of A.H., a physical education teacher named Matthew Koff was selling a uniform to a student whose initials were "A.H."  (Initials rather than names are used in appellate cases when reference is made to a minor.)  According to Koff, A.H.'s speech was slurred, and Koff could not understand A.H. so he asked him to repeat his name several times and even to spell it.  Feeling that something was not right, Koff voiced his concerns to the assistant principal who immediately took A.H. to an empty office along with a police officer.  The assistant principal asked A.H. to empty his pockets.  When A.H. produced his wallet, the assistant principal opened it and found what turned out to be marijuana.

         The Fifth District Court of Appeal ruled that this search was illegal and that the marijuana should therefore be suppressed because Koff had merely a "gut feeling" that something was wrong while the assistant principal and police officer had no problem understanding A.H.

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          On March 4, 2008, I wrote an article on this blog entitled "Are the Police Allowed to Lie to Get You to Confess?"  I answered that question by saying, "[Y]es, the police are allowed to lie to you to get you to confess.  The law in Florida is that the use of tricks or factual misstatements by the police do not by themselves make a confession involuntary."

          Although that was a correct statement of the law, there are, nevertheless, interrogation techniques which the police are not allowed to use in obtaining evidence from a suspect. 

          For example, in the case of State of Florida v. McCord, a Detective Cahir focused his attention on a person named Foskie McCord as being a possible suspect in several armed robberies in Palm Beach County, Florida.  While McCord was in jail on unrelated charges, Cahir met with him, gave him Miranda warnings, and told McCord that he was a suspect in a rape case.  He also convinced McCord to provide him with a DNA sample by telling him that such evidence would prove whether or not he committed the rape.

          The problem with all of this was that there was no rape!  Cahir made that up in order to trick McCord into giving him a DNA sample so that he could compare that sample with a sample of DNA that was found at the scene of one of the robberies.  In addition, Cahir never mentioned to McCord that he was a suspect in any armed robberies.

          After McCord was charged in the robbery cases, he filed a motion to suppress the DNA evidence on the ground that his consent was involuntary and obtained in violation of his due process rights because Cahir used deceitful tactics to acquire it.

          The trial judge who head the motion agreed with McCord and suppressed the DNA evidence.  However, the State Attorney's Office appealed the judge's decision to Florida's Fourth District Court of Appeal--which also agreed with McCord and suppressed the DNA evidence!

          The Fourth District Court began its analysis by noting that in the case of Schneckloth v. Bustamonte the United States Supreme Court stated that a warrantless search does not violate the Fourth Amendment to the U.S. Constitution if the search is conducted pursuant to a freely and voluntarily-given consent.  However, said the Fourth District Court, such consent can be rendered involuntary if an interrogating officer makes misrepresentations regarding the nature of the investigation.  The Court also observed that insofar as confessions are concerned, "the use of police trickery may result in the exclusion of the confession depending upon the level of trickery employed." 

          According to the Fourth District, a "critical factor" in Mr. McCord's case was whether Cahir's deception undermined the voluntariness of McCord's consent.  In concluding that Cahir's deception did indeed undermine the voluntariness of McCord's consent, the appeals court found it particularly troubling that the detective made up the rape charge in order to obtain McCord's DNA.  The Court distinguished this case from those cases cited by the Attorney General's Office in which the police used trickery but did not make up stories about nonexistent crimes.

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