Can the Police Take Your DNA When You Are Arrested in Florida?

The United States Supreme Court often has to decide what level is government intrusion is considered constitutional. This has become a common theme recently and I thought it would be helpful to share some insight into one case that has recently become controversial. In the recent Supreme Court case, Maryland v. King, the court was asked to decide on the constitutionality of a Maryland State Statute that allows law enforcement officers to take a DNA sample of a person – when they’re arrested and before they are convicted of any crime. A similar DNA law exists if you’re arrested in Florida or a number of other states.

Supreme Court Florida Law

Supreme Court
Photo by pepsobert.

In Maryland v. King, Mr. King was arrested for assault in Maryland. The police officers took a sample of Mr. King’s DNA upon his arrest, and it was placed into the State of Maryland’s DNA database. After Mr. King’s DNA was placed in the database, it was determined that it had previously been found at the crime scene of an unsolved rape case. The DNA sample from Mr. King’s arrest was then used to convict him in the previously unsolved rape case. Mr. King argued that the seizure of his DNA was unreasonable and a violation of his 4th Amendment Right (search and seizure) under the United States Constitution.

A majority of the United States Supreme Court ruled that the DNA Law in Maryland, requiring DNA to be taken at the time of arrest, is constitutional. They argued that the DNA used to identify the suspect in the case can be compared to a fingerprint that is taken at the time of your arrest, and a DNA swab to the cheek is not an overly invasive procedure. Additionally, the majority of the court argued that the Maryland statute also prohibits the government from using the DNA information for anything but identification.

The court said the sample was used for identification and is like any other biological information the government takes at the time of an arrest, such as: height, weight, sex, eye color hair, and eye color. The majority argued that the government had a lawful interest in using this DNA information to ensure that the government had an accurate criminal history of the person arrested. In other words, the Supreme Court basically said that taking DNA at arrest is not really a search, so the 4th Amendment does not apply. Secondly, if it is a search, the government has a valid and important interest in the search, and it is not invasive.

The majority of the Supreme Court makes some fair arguments about the seizure of DNA at the time of arrest. However, I believe Justice Scalia’s dissenting opinion is the most logical, based on sound legal reasoning.  The dissenting opinion in the Maryland v. King case argues that when a person is arrested they are still innocent until proven guilty, so taking a sample of their DNA shouldn’t be allowed. Additionally, it makes the valid point that the DNA taken from Mr. King was not used to identify him, but was used to identify an unknown suspect in the unsolved rape case.

police dna swab

Police DNA swab. Photo provided by West Midlands Police

Justice Scalia also argues that it’s not entirely clear if taking someone’s fingerprints is entirely constitutional, and the majority court cites no prior case law to back up the assumption that taking a person’s fingerprints is permitted under the 4th Amendment. In conclusion, the dissent states that there is no doubt that taking a DNA sample from everyone arrested will result in more unsolved crimes being solved. However, the dissenting Supreme Court Justices argue that more crimes would also be solved if the government was able to take a DNA sample from everyone who flies in an airplane, attends public school, or applies for a driver’s license. In Justice Scalia’s opinion, what solves more crimes should not be the standard for what is and isn’t constitutional. For Justice Scalia, the intention of the founding fathers is what is important, and the right to be free of an invasive search by the government.

If you have been arrested in Florida and have questions about your constitutional rights,  call the Attorney Jeremiah D. Allen at (407)415-9626.

Are Police Allowed to Search Cell Phones? Florida Law 101

search cell phone

Are police allowed to search cell phones? Not without a warrant in Florida.

Did you know that your cell phone is protected by the Florida Supreme Court?

I recently read an interesting case, Cedric Tyrone Smallwood v. State of Florida, where the Florida Supreme Court voted on whether police are allowed to search cell phones. The court ruled that law enforcement officers may not seize a defendant’s cell phone without a search warrant.

In Cedric Tyrone Smallwood v. State of Florida, police took possession of Smallwood’s phone after his arrest for robbing a store.  Browsing the phone, the police discovered pictures of money, guns, and the defendent’s fiancée holding a bundle of money. The pictures were taken several days after the robbery. Were the police legally allowed to search the cell phone? The Florida Supreme Court ruled that the 4th Amendment, which protects people from unnecessary searches, applies to pictures on cell phones.

The Florida Supreme Court decided that cell phones are different from other items that are seized during arrests. The court claimed that cell phones contain the most “private and personal details of an arrestee’s life.” Just because a cell phone condenses the details of someone’s life onto a small electronic device, doesn’t mean those devices shouldn’t be protected. The Florida Supreme Court even compared a cell phone to a small version of a person’s home—a cell phone, like a home, could contain private things such as bank and medical records.

The ruling that a search warrant must be obtained before police are allowed to search a person’s cell phone after arrest is very important. In our technology-driven society, we all walk around with tons of personal information in our pockets, including pictures, personal emails, and financial information. This ruling by the Florida Supreme Court works to protect this private information. If the government really needs this information, and has probable cause to believe it relates to a crime, it makes sense that they should only be allowed to access it with a warrant signed by a judge. Allowing a police officer free access to this information violates our 4th Amendment rights.

If you feel your Constitutional rights have been violated, please feel free to call me at (407)415-9626 or email