Can Police Lie To Get My DNA in Florida?

September 5, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, law enforcement may wish to obtain a DNA sample from a suspect in connection to an ongoing investigation. Someone may decline providing that sample unless a warrant requires it to be provided (e.g. a saliva swab), or exigent circumstances permit officers to gather it without a warrant first being issued. Maryland v. King, 569 U.S. 435 (2013)

In some cases, an officer may extract a DNA sample from a suspect by lying about the reason for doing so. But is this practice legal? The Florida Supreme Court has ruled yes, that an officer can deceive a suspect into providing a DNA sample – but there are limitations. 

This blog will explore if and when police can trick someone into providing DNA in a criminal case in Florida.

The key case on this issue is Wyche v. State. Wyche v. State, 987 So. 3d 23 (Fla. 2008). There, Wyche was arrested for an alleged probation violation while officers were investigating a sexual battery. An officer requested Wyche’s DNA, claiming that he was suspected of a burglary at Winn-Dixie, which the officer made up.

Taking the officer’s word for it and believing it would exonerate him of the fictional burglary, Wyche provided a saliva swab to law enforcement. The swab ultimately cleared Wyche in the rape investigation. However, the sample was subsequently used by police to identify Wyche as the suspect in an actual burglary of a local shop (not Winn-Dixie).

Based largely on the DNA evidence connecting him to the scene that he provided to police, Wyche was convicted of burglary and other charges. Wyche appealed, arguing that his Fourth Amendment rights were violated because he was deceived into providing a DNA sample based on representations of a Winn-Dixie burglary the officer knew not to have occurred.

But the Florida Supreme Court ruled against Wyche, affirming his conviction based on the use of the DNA. The Court noted that in 1994, Washington had already authorized the use of DNA samples in separate law enforcement investigations once provided to the police. Washington v. State, 653 So.2d 362, 364 (Fla. 1994).

The Court then explained their finding that a lie from police (e.g. fabricating the Winn-Dixie burglary) which results in someone giving DNA does not automatically invalidate the use of a DNA sample against that suspect. 

The Court reasoned that to determine whether a suspect’s Fourth Amendment rights were violated in obtaining a DNA sample, a “totality of the circumstances” evaluation must occur.

Wyche cited the U.S. Supreme Court’s Watson decision, which found the defendant’s consent to search was voluntary based on the following facts (U.S. v. Watson, 423 U.S. 411 (1976)):

• There were no overt acts or threats of force against Watson if he refused the swab
• No promises were made to him (e.g. money, leniency)
• There was no indication that more subtle forms of coercion that might have impacted his judgment
• His consent was given on a public street, not inside a police station
• He was notified that the results of the DNA swab could and would be used against him

The U.S. Supreme Court reasoned that even if Watson did not know he could withhold his consent, the DNA would still be permitted to be used against him due to all of the above being true. Applying the Watson factors and affirming their earlier Washington ruling, the Florida Supreme Court wrote the following about Wyche’s consent:

“In both cases, the defendants consented to the collection of bodily fluids after being told that the samples were to be used in a criminal investigation. The circumstances of Wyche’s consent are actually less concerning than the circumstances in Washington because Wyche was told that the requested saliva swab was to be used in investigating a burglary, and the saliva was in fact used to investigate and prosecute a burglary.”

“Wyche was not misled into thinking that DNA evidence would not be relevant to a burglary investigation, a crime one may not intuitively associate with biological evidence, and the saliva swabs were not used in the investigation and prosecution of some other type of crime—except to clear Wyche in the rape investigation.”

In essence, Wyche placed emphasis on actual coercion (or lack thereof) as the deciding factor in determining whether a DNA swab was voluntarily consented to. To the Wyche court, even law enforcement going so far as to totally fabricate the existence of another investigation to obtain DNA does not render the resultant sample unusable at trial.

The dissent in Wyche was adamant that police creating a lie to obtain DNA evidence (not simply misleading suspects by omitting information, etc.) violated Wyche’s rights. A dissenting Justice Anstead wrote: 

“In common terms, Wyche was tricked into giving a sample by the use of intentional deception specifically crafted to secure the consent. This appears to be precisely the kind of police misconduct contemplated by our statements in Thomas and Johnson.”

Johnson, an earlier Florida Supreme Court ruling, held that “voluntariness may be negated and suppression of evidence mandated where the defendant makes a showing of “physical or psychological coercion, intentional deception, or a violation of a constitutional right.” Johnson v. State, 660 So.2d 637 (Fla. 1995)

Thomas v. State, 456 So.2d 454 (Fla. 1984) similarly held:

“Techniques calculated to exert improper influence, to trick, or to delude the suspect as to his true position will also result in the exclusion of self-incriminating statements thereby obtained. … To render a confession inadmissible, however, the delusion or confusion must be visited upon the suspect by his interrogators; if it originates from the suspect’s own apprehension, mental state, or lack of factual knowledge, it will not require suppression.”

Justice Anstead applied Thomas and Johnson’s logic surrounding confessions (5th Amendment) to Wyche’s 4th Amendment rights, Justice Anstead concluded that because Wyche’s “delusion or confusion was visited upon him by his interrogators” (police fabricating the Winn-Dixie burglary), the DNA swab should have not been admissible (as it was illegally obtained).

In sum, Florida courts are clear – police may use trickery to obtain a DNA sample from a suspect, including by lying to a suspect about the existence of a fictional criminal investigation that the suspect knows they were not involved in (resulting in them providing DNA). 

The Florida Supreme Court’s Wyche ruling makes clear that police trickery is permitted in obtaining a DNA sample. But if coercion exists (such as threats of violence without compliance, offers of drugs or monetary reward, etc.), a DNA sample may still be suppressed on the basis that it was involuntarily provided, a warrant was not obtained, and exigent circumstances did not exist.

If someone is arrested and formally charged in Florida and concerned about DNA evidence, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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