State v. Gibson , 2014 Fla. App. LEXIS 18949 ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed November 19, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2286
Lower Tribunal No. 12-16446
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The State of Florida,
Appellant,
vs.
Darrell Gibson,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.
Pamela Jo Bondi, Attorney General and Michael W. Mervine, Assistant
Attorney General, for appellant.
Herbert Erving Walker III, for appellee.
Karen M. Gottlieb; Wetherington, Klein & Hubbart; Greenberg Traurig and
Elliot H. Scherker; Sonya Rudenstine for the Florida Association of Criminal
Defense Lawyers and the Miami Chapter of the Florida Association of Criminal
Defense Lawyers, as amicus curiae.
Before SHEPHERD, C.J., and SALTER and FERNANDEZ, JJ.
SALTER, J.
The State of Florida appeals an order granting a motion by defendant Darrell
Gibson to suppress deoxyribonucleic acid (DNA) evidence obtained, analyzed, and
placed in a law enforcement database with Gibson’s uncoerced written consent.
We reverse.
I. The Record and Proceedings Below
In May 2012, Gibson approached a Miami-Dade police officer on the street
near the scene of a homicide-arson investigation in progress. After Gibson
indicated that he lived on the same block and might have information about the
incident, he was brought to a detective investigating the crime scene. Gibson
spoke freely with the detective for about a half-hour.
The detective asked Gibson if he would sign a “Consent to Provide DNA
Specimen for Laboratory Analysis” and provide DNA, apparently to rule out
Gibson as a suspect in the investigation. Gibson asked no questions about the form
before signing it. The form provides:
I, DARREL T. GIBSON, HEREBY FREELY AND VOLUNTARILY
CONSENT TO PROVIDE MDPD POLICE OFFICERS WITH A
MOUTH SWAB SPECIMEN FOR INVESTIGATIVE PURPOSES.
I HAVE BEEN FULLY INFORMED THAT THIS SPECIMEN
WILL BE ENTERED INTO A DNA DATABASE AFTER
ANALYSIS.
I HAVE BEEN FULLY INFORMED THAT THE INFORMATION
MAY BE AVAILABLE TO MY PHYSICIAN UPON MY
REQUEST, AND IT WILL REMAIN CONFIDENTIAL AND BE
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USED FOR NO PURPOSES OTHER THAN INVESTIGATION,
WHICH MAY LEAD TO CRIMINAL PROSECUTION.
I FULLY UNDERSTAND THAT I HAVE A RIGHT TO REFUSE
TO GIVE THIS SPECIMEN. I HAVE READ AND UNDERSTAND
THE ABOVE STATEMENT AND I CONSENT TO PROVIDE
THIS SPECIMEN OF MY OWN FREE WILL WITHOUT ANY
THREATS OR PROMISES HAVING BEEN MADE TO ME.
ADDITIONALLY, IN THE EVENT I CANNOT PROVIDE
PROPER IDENTIFICATION, I VOLUNTARILY AGREE TO
PROVIDE MY THUMBPRINTS AT THE TIME OF THE SWAB
COLLECTION TO MDPD POLICE OFFICERS.
The form did not include a case number or any reference to the 2012
homicide-arson investigation.1 The detective then took four swabs of cells from
Gibson’s cheek and turned them over to the crime laboratory for DNA analysis.
The analysis produced a DNA profile that was placed in the Combined DNA Index
System (CODIS), a law enforcement database and software system facilitating
computer-based comparison analysis in much the same way fingerprints are
digitized, stored, and compared by law enforcement software and analysts.
Although Gibson’s DNA profile did not produce a potential match to any
2012 homicide-arson evidence, it did produce a match with DNA samples obtained
1 The consent form included spaces for the name, race, sex, date of birth, address,
Social Security number, and I.D. number (Florida driver’s license), above the
printed consent provisions. These spaces all were completed to identify the
appropriate details relating to Gibson. Below the printed consent provisions, lines
were provided for the signature of “CONSENTING INDIVIDUAL,” and two
witnesses, as well as lines for the date and time. Gibson and two witnesses signed
the form and entered the date and time.
3
in connection with an open 2008 case involving the sexual assault and attempted
murder of a 53-year-old woman in Miami. After further investigation, Gibson was
arrested and charged with two counts of sexual battery and one count of attempted
murder in the 2008 case.
Gibson moved to suppress the DNA sample and comparison evidence on the
basis that the scope of the uncoerced, knowing, voluntary, and written consent
form signed by him did not authorize law enforcement use of his DNA for any
purpose other than the 2012 homicide-arson investigation. The trial court granted
the motion, and this appeal by the State followed.
II. Analysis
The trial court’s order ignores a substantial, consistent body of state and
federal law that analogizes DNA specimens, profiles, and databases to an older
system of biometric identification—fingerprints.2 See, e.g., Anderson v.
Commonwealth, 650 S.E.2d 702, 705 (Va. 2007), (citing, among other cases, Jones
v. Murray, 962 F.2d 302 (4th Cir. 1992) and United States v. Sczubelek, 402 F.3d
175 (3d Cir. 2005), cert. denied, 548 U.S. 919 (2006)). We have cited and
followed Anderson on that issue. Myles v. State, 54 So. 3d 509, 512 (Fla. 3d DCA
2010).
2 Fingerprints are now also digitized, added to the Integrated Automated
Fingerprint Identification System (IAFIS), and compared by the Federal Bureau of
Investigation and other law enforcement authorities.
4
It is also well settled in federal opinions that have addressed the issue, and in
the Florida state courts as well, that law enforcement’s “matching of a lawfully-
obtained identification record against other records in its lawful possession does
not infringe on an individual’s legitimate expectation of privacy.” Boroian v.
Mueller, 616 F.3d 60, 67 (1st Cir. 2010).3 See also Johnson v. Quander, 440 F.3d
489, 499 (D.C. Cir. 2006). In Washington v. State, 653 So. 2d 362, 364 (Fla.
1994), Anthony Washington “freely and voluntarily” provided hair and blood
samples after being told the samples could prove or disprove his guilt in a sexual
battery case unrelated to an earlier sexual battery and murder case in which law
enforcement already suspected Washington was the perpetrator. The hair and
blood samples, together with DNA analysis obtained from the victim’s body and
Washington’s blood, were part of the evidence at the trial of the earlier crime.
Washington was found guilty of the earlier sexual battery and murder, and he was
sentenced to death.
In rejecting Washington’s claim that his hair and blood samples could not be
used to inculpate him in the earlier sexual battery and murder case and should have
been suppressed, the Florida Supreme Court found that “once the samples were
3 U.S. Circuit Judge Calabresi observed in United States v. Amerson, 483 F.3d 73,
85 (2d Cir. 2007), that “The so-called ‘junk-DNA’ sequences stored in CODIS are
not currently associated with any known physical or medical characteristics.
Moreover, the [DNA] Act severely limits the circumstances and purposes for
which the DNA profiles can be released and provides significant penalties for any
misuse of the DNA samples or profiles.” (internal footnote and citation omitted).
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validly obtained, albeit in an unrelated case, the police were not restrained from
using the samples as evidence in the murder case.” Id. at 364. The Court
reaffirmed that holding in Wyche v. State, 987 So. 2d 23, 27 (Fla. 2008):
We further held in Washington that once the samples were validly
obtained, they could be used in the unrelated murder prosecution.
Thus, Washington established that when a defendant validly consents
to the giving of the bodily substance, whether saliva, hair, or blood,
for use in a criminal investigation, the characteristics of the substance
can be used in investigations unrelated to the one for which the
defendant was told the sample was collected. This holding is logical
because the DNA profile derived from a bodily substance like saliva,
hair, or blood is a constant identifying fact that does not change or
disappear.
The trial court’s order would blaze new juridical trails4 by requiring,
retrospectively, a more detailed disclosure in order to obtain consent to a buccal
swab, DNA analysis, and inclusion of the resulting profile in the CODIS database.
Because of the trial court’s concern regarding “the encroachment of advancing
technology,” and that court’s view that Gibson was giving his “unique genetic
code to governments and government functionaries around the world, to use when
they like as often as they like, for whatever purposes they like,” the trial court held
that the scope of Gibson’s consent should be confined to limit the use of his DNA
4 That may be an overstatement; the order was presaged by United States Court of
Appeals Judge Alex Kozinski’s dissent in United States v. Kincade, 379 F.3d 813,
871 (9th Cir. 2004), including a concern regarding “this power of technology to
shrink the realm of guaranteed privacy.” (quoting Kyllo v. United States, 533 U.S.
27, 34 (2001)). In Kincade, however, the Ninth Circuit debated the circumstances
under which DNA profiling may be compelled, not those in which consent has
been obtained (as in the present case).
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to the homicide-arson investigation for which it was originally sought.5 The trial
court’s analysis of the written, signed consent form was based on an explicit
predicate that “the case at bar cannot be adjudicated without addressing the extent
to which the lay public is conversant with forensic DNA technology” and “the
extent to which that technology is taken into account by an ordinary member of the
public in fashioning a voluntary consent.”6
Our analysis and conclusions are otherwise, based on three sources of
authority: (a) the language of the consent form and the absence of any verbal
representation that the detective’s use of Gibson’s DNA profile would be limited to
the 2012 homicide-arson investigation; (b) the holdings in federal courts and
fourteen other states that have considered this issue; and (c) federal and Florida
legislative initiatives that continue to address the potential for the misuse of our
citizens’ private genetic information.
A. The Consent Form
The trial court rejected the unambiguous form of consent set forth at the
outset of this opinion because it did not reveal a purportedly-unlimited scope—that
Gibson had inadvertently “consented to having his DNA tested in connection with
5 “Order on Defendant’s Motion to Suppress,” August 29, 2013, State v. Gibson,
Case No. F12-16646 (Fla. 11th Jud. Cir.), p. 17 and n.3.
6 Id. at p. 3.
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every unsolved crime as to which biological or genetic evidence exists or will ever
exist—not just in Miami, not just in Florida, but throughout the United States and
in dozens of foreign countries.”7 Of course, the same objection could be asserted
with respect to fingerprints, but that objection has also been rejected by the federal
and Florida courts.
The determinative phrases of the consent, and thus the scope of the use of
the specimen, are: (1) that the mouth swab specimen would be used for
“investigative purposes,” with “purposes” in the plural and no limitation specified;
and (2) “that this specimen will be entered into a DNA database after analysis,”
disclosing that the specimen would be analyzed and that it would go into a
collection of other DNA analyses used for those “investigative purposes.”
Applying the objective reasonableness test of Illinois v. Rodriguez, 497 U.S.
177 (1990), a reasonable person in Gibson’s position would have understood that
he was relinquishing the physical possession of cells swabbed from his cheek for
analysis by law enforcement authorities and entry into a DNA database. Once
taken from him with his consent, those cells are not significantly different than a
blood or hair sample—they cannot be restored to their former location in Gibson’s
body, and there is no reason to do so. Gibson did not question or challenge law
7 Id. at p. 6.
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enforcement’s right to possess and use—for investigative purposes—that cell
sample and the DNA within it.
In Florida v. Jimeno, 500 U.S. 248, 251 (1991), it was held to be objectively
reasonable for a law enforcement officer, after validly obtaining consent to search
an automobile, to open a closed paper bag on the automobile’s floor—because,
among other reasons, the suspect “did not place any explicit limitation on the scope
of the search.” In the present case, Gibson also placed no explicit limitation on the
scope of his consent to the analysis and use of his DNA for investigative purposes.
The trial court concluded, and Gibson argues, that CODIS is not just a
database, but rather a complex software infrastructure requiring additional
disclosure in the consent form. As detailed previously and below, however,
controlling federal and state precedent are otherwise. The CODIS database, or
“databank” as it is sometimes identified,8 meets the dictionary definition of
“database” as that term was used in the consent form: “a usually large collection of
data organized especially for rapid search and retrieval (as by a computer).”9 The
United States Courts of Appeals for the Second and Ninth Circuits have also
referred to CODIS as a database. Amerson, 483 F.3d at 76 (stating that CODIS is
8 “DNA Databanking: Selected Fourth Amendment Issues and Analysis,”
Congressional Research Service Report R41847, June 6, 2011 (available at
www.crs.gov) (hereafter, “DNA Databanking”).
9 www.merriam-webster.com/dictionary/database (site last visited Oct. 29, 2014).
9
“a national database”); United States v. Kincade, 379 F.3d 813, 819 (9th Cir. 2004)
(identifying CODIS as “a massive centrally-managed database linking DNA
profiles culled from federal, state, and territorial DNA collection programs, as well
as profiles drawn from crime-scene evidence, unidentified remains, and genetic
samples voluntarily provided by relatives of missing persons.”).
B. Persuasive Analysis from Federal and State Courts
The federal cases previously cited have upheld the use of DNA profiles
obtained lawfully with comparison-testing and use in an unrelated criminal
investigation. The Maryland Court of Special Appeals recently surveyed state law
cases on this issue and summarized them in Varriale v. State of Maryland, 96 A.3d
793, 797 n.3 (Md. Ct. Spec. App. 2014):
Many other states have also held that the Fourth Amendment does not
bar the police from using lawfully-obtained DNA samples in
unrelated criminal investigations. See Washington v. State, 653 So.
2d 362, 364 (Fla. 1994); Pace v. State, 271 Ga. 829, 524 S.E.2d 490,
498 (Ga. 1999); State v. Hauge, 103 Haw. 38, 79 P.3d 131, 145 (Haw.
2003); Smith v. State, 744 N.E.2d 437, 439 (Ind. 2001);
Commonwealth v. Gaynor, 443 Mass. 245, 820 N.E.2d 233, 243
(Mass. 2005); State v. Bowman, 337 S.W.3d 679, 685 (Mo. 2011);
State v. Notti, 2003 MT 170, 316 Mont. 345, 71 P.3d 1233, 1238
(Mont. 2003); Herman v. State, 122 Nev. 199, 128 P.3d 469, 473
(Nev. 2006), overruled in part on other grounds, Nunnery v. State,
263 P.3d 235 (Nev. 2011); People v. Baylor, 97 Cal. App. 4th 504,
118 Cal. Rptr. 2d 518, 521 (Cal. Ct. App. 2002); People v. Collins,
250 P.3d 668, 674 (Colo. Ct. App. 2010); State v. Barkley, 144 N.C.
App. 514, 551 S.E.2d 131, 135 (N.C. Ct. App. 2001); People v. King,
232 A.D.2d 111, 117, 663 N.Y.S.2d 610 (N.Y. App. Div. 1997); State
v. McCord, 349 S.C. 477, 562 S.E.2d 689, 693 (S.C. Ct. App. 2002);
10
Pharr v. Commonwealth, 50 Va. App. 89, 646 S.E.2d 453, 458 (Va.
Ct. App. 2007).
Our research has disclosed no federal or state authority suppressing the use
of DNA profile evidence on facts similar to those in the record here, including the
failure by a law enforcement officer to explain in detail “forensic DNA
technology” or the longevity and reach of a profile entered in the CODIS database.
C. Legislation Addresses Permissible and Prohibited Uses
The trial court’s concerns regarding the private personal information that
might be gleaned from DNA—even from the “junk DNA” profiles created as
unique identifiers in the CODIS system—have been considered by Congress and
the Florida legislature. There is an obvious need to balance the importance of
DNA profiles as a benefit to law enforcement10 and wrongfully-convicted persons
alike11 with the privacy concerns expressed by the trial court.
10 “Modern DNA testing can provide powerful new evidence unlike anything
before. Since its first use in criminal investigations in the mid-1980s, there have
been several major advances in DNA technology, culminating in STR [short
tandem repeat] technology. It is now often possible to determine whether a
biological tissue matches a suspect with near certainty.” Dist. Attorney’s Office
for Third Jud. Dist. v. Osborne, 557 U.S. 52, 62 (2009).
11 B. Garrett, Convicting the Innocent, p. 217 and passim, Harvard Univ. Press
(2011). As Professor Garrett observes, DNA evidence has not only sustained
claims of actual innocence; in many cases it has also resulted in the conviction of
the actual perpetrator. Id. at pp. 231-34.
11
The federal legislation, principally 42 U.S.C. § 14131 et seq., provides
authority for, and limitations on, the collection and use of DNA samples. These
statutes have been amended as DNA technology has evolved. 42 U.S.C. §
14132(d) “mandates expungement of DNA samples upon an arrestee’s showing of
discharge or acquittal or a convict’s showing that the conviction was overturned.”12
In Florida, section 943.325, Florida Statutes (2012), titled “DNA database,”
begins, “The Legislature finds that DNA databases are important tools in criminal
investigations, in the exclusion of individuals who are the subject of criminal
investigations or prosecutions and in detecting recidivist acts.” Subparagraph (16)
of that statute provides the circumstances under which a person may compel the
removal of his or her DNA sample and analysis from the statewide DNA database.
A separate statute, section 760.40, Florida Statutes (2012), the “DNA
Database Act,” regulates the performance and use of DNA analysis, but does not
apply to “criminal prosecution,” determinations of paternity, or DNA analysis
conducted under section 943.325. The balancing of the competing law
enforcement and privacy interests is, in short, a matter of continuing legislative
attention.
III. Conclusion
12 “DNA Databanking,” at p. 7. The report also describes, at footnote 62, some of
the complaints about the expungement provisions.
12
Federal and Florida courts, as well as those of other states, have not
interpreted the Fourth Amendment to require a more detailed disclosure and
consent requirement of the kind demanded by the trial court. To the contrary,
DNA samples, profiles, and databases have been assessed in substantially the same
way as other biometric identifiers, particularly fingerprints. The trial court’s order
is a substantial and unsupported departure from controlling precedent.
The suppression order is reversed and the case remanded for further
proceedings.
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