Florida's New DNA Law: Is It Constitutional?

         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.