Petition for Writ of Certiorari — Andre Brian McGriff, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

ANDRE BRIAN MCGRIFF, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINBGER

Public Defender

Jeffrey L. Anderson*

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

janderson@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

* Member of the United States Supreme Court Bar

QUESTION PRESENTED

The crime scene was a residence. DNA was located at the

scene. The DNA was run through a Combined Data Index System

(“CODIS”). There was a DNA hit, but the hit was not confirmed as

required by the NDIS CODIS manual. This DNA result was used as

the sole basis for probable cause for a warrantless arrest of

Petitioner. The question is:

Whether Petitioner was deprived of his rights under the

Fourth and Fourteenth Amendments, where he was

arrested and taken into custody without a warrant and

where probable cause for the arrest was based on an

unconfirmed CODIS hit?

i

RELATED PROCEEDINGS

The proceeding listed below is directly related to the abovecaptioned case in this Court: McGriff v. State, 423 So. 3d 879 (Fla.

4th DCA 2025) (mem.).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................. i

RELATED PROCEEDINGS .............................................................. ii

TABLE OF CONTENTS .................................................................. iii

INDEX TO APPENDICES ................................................................iv

TABLE OF AUTHORITIES ............................................................... v

OPINION BELOW ........................................................................... 1

JURISDICTION ............................................................................... 2

CONSTITUTIONAL PROVISIONS..................................................... 2

STATEMENT OF THE CASE ........................................................... 3

REASONS FOR GRANTING THE PETITION ..................................... 7

PETITIONER WAS DEPRIVED OF HIS RIGHTS UNDER THE

FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, WHERE HE WAS ARRESTED AND

TAKEN INTO CUSTODY WITHOUT A WARRANT BASED ON AN

UNCONFIRMED CODIS HIT ........................................................ 7

CONCLUSION .............................................................................. 11

iii

INDEX TO APPENDICES

A. District Court’s Decision ............................................................ 2

B. Order Denying Rehearing ........................................................... 3

C. Mandate.................................................................................. 4-5

D.Order on Motion to Suppress……………………………......………6-14

E.NDIS Manual………………………………………………....………15-113

E.Excerpts from Initial, Answer, and Reply briefs ………....…114-124

iv

TABLE OF AUTHORITIES

Page

Cases

Brim v. State, 695 So. 2d 268 (Fla. 1997) ........................................ 9

Jackson v. State, 926 So. 2d 1262 (Fla. 2006) ................................ 2

Mallet v. State, 280 So. 3d 1091 (Fla. 2019) .................................... 2

McGriff v. State, 423 So. 3d 879 (Fla. 4th DCA 2025) (mem.) i, ii, 1, 4

Murray v. State, 692 So. 2d 157 (Fla. 1997) .................................. 10

Constitutional Provisions

Amend. IV, U.S. Const. ......................................................... passim

Amend. XIV, U.S. Const. ....................................................... passim

v

IN THE SUPREME COURT OF THE UNITED STATES

_____________

N O.

Andre Brian McGriff, Petitioner,

V.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

ANDRE BRIAN MCGRIFF respectfully petitions for a writ of

certiorari to review the judgment of the Fourth District Court of

Appeal of Florida in this case.

OPINION BELOW

The decision of Florida’s Fourth District Court of Appeal is

reported as McGriff v. State, 423 So. 3d 879 (Fla. 4th DCA 2025)

(mem.). It is reprinted in the appendix. A2.

1

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed Petitioner’s

convictions and sentences on October 1, 2025. A2. The court denied

Petitioner’s motion for Rehearing, Rehearing En Banc, Issuance of a

Written Opinion, and Certification on December 1, 2025. A3.

The Florida Supreme Court is “a court of limited jurisdiction,”

Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citation omitted),

Specifically, it has no jurisdiction to review district court of appeal

decisions entered without written opinion. Jackson v. State, 926 So.

2d 1262, 1266 (Fla. 2006). Hence, Petitioner could not seek review

in that court. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

The Fourth Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

Section 1 of the Fourteenth Amendment of the United States

2

Constitution provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

The State charged Petitioner with: kidnapping, burglary of a

dwelling with a battery; lewd or lascivious molestation; and lewd or

lascivious conduct R44-46.

Petitioner moved to suppress evidence based on an illegal

arrest and illegal searches and seizures. 1

A hearing was held on the motion. The hearing centered on

whether a Combined Data Index System (“CODIS”) hit gave

probable cause to arrest Petitioner.

Detective Eric Alfonso testified that on January 24, 2018 he

1 The evidence to suppress included: Nike Shoes, Defendant's

DNA, Statements made by Defendant on recorded jail calls, cell

phones, Thumb drives, any and all cellular phone data for the

Defendant's phone, including historical call information, cell site

information, text message content, internet search history, any and

all biological evidence, including DNA compared to the Defendant's

standards R503.

3

was informed of a DNA hit from the Sheriff’s Office laboratory

R1006. Based on the hit, Petitioner was put under surveillance

R1006. Alfonso had begun preparing an arrest warrant but never

sought an arrest warrant for Appellant R1006,1036-37. There was

no warrant for Appellant’s DNA prior to his arrest R1037. Alfonso

was familiar with a communication with the Florida Department of

Law Enforcement which reads:

“The laboratory must inform the submitting the law

enforcement agency of the need for a known biological

sample from the subject and this sample must be

analyzed as the final step in the conformation step

process.”

R1038 lines 19-23.

Aida

Ortiz

Neveraz

is

the

designated

CODIS

administrator for the Broward County Sheriff’s Laboratory and

determines whether there is a DNA CODIS match R1044. In this

case there were four hits R1046-47. One known offender came back

as Tony McGriff R1047.

Tiffany Roy is an forensic DNA expert and reviews the

work of private and public laboratories R1065. Roy testified that a

sample outside of CODIS is required for the CODIS confirmation

R1068. The confirmation is needed to check that what is in the

4

database has been entered correctly R1068. Sometimes mistakes

occur and different names get uploaded with different profiles

R1068. Page 50 of the NDIS manual states:

… a candidate match is not a confirmed match. And the

personally identifiable information relating to candidate

match shall not be released until the laboratory has

confirmed the match.

R1069,A67. There has to be a confirmation for there to be a hit

R1070. The sample for confirmation in this case was submitted on

February 13, 2018 which was after the arrest R1071. Roy has seen

hits reported in CODIS and later it was discovered there was

problem with the upload T1072. Sometimes hits occur without

sufficient information R1074. FBI CODIS requires acquisition of a

new sample to confirm the match R1075-1077.

The trial court denied the motion as to the claim that the

CODIS hit did not provide probable cause by ruling a CODIS hit is

confirmed when it aids in further investigation of unsolved crimes

A12.

At trial, the victim testified the perpetrator entered the

residence and: abused her, took a photo of her from his cell phone,

and took a number of items from the residence. It was not disputed

5

that these crimes occurred. The issue at trial was who committed

the crimes. Petitioner was never found in possession of the items

taken from the scene. A photo of the victim was not found on

Petitioner’s cell phone. The victim was able to give a generic

description of the perpetrator but was not able to identify Petitioner

by matching him to the description. DNA was found at the crime

scene. Petitioner could not be eliminated as being the contributor of

the DNA. Petitioner was convicted of the crimes charged and

sentenced to life in prison.

Petitioner timely filed a notice of appeal.

Petitioner filed his brief in the appellate court-the Fourth

District Court of Appeal. Among other issues, he argued that trial

court erred in denying his motion to suppress evidence which was

the fruit of a warrantless arrest which was made without probable

cause in violation of the Fourth and Fourteenth Amendments to the

United States Constitution. A114-118, 123-124.

The court affirmed Petitioner’s convictions and sentences. A2.

Petitioner filed a motion for Rehearing, Rehearing En Banc,

Issuance of a Written Opinion, and Certification on October 15,

2025. On December 1, 2025, the appellate court denied Petitioner’s

6

motion. A3.

REASONS FOR GRANTING THE PETITION

PETITIONER WAS DEPRIVED OF HIS RIGHTS UNDER

THE FOURTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION, WHERE HE WAS

ARRESTED AND TAKEN INTO CUSTODY WITHOUT A

WARRANT BASED ON AN UNCONFIRMED CODIS HIT

Petitioner moved to suppress evidence which was the fruit of a

warrantless arrest without probable cause. Petitioner claimed a

CODIS hit, without confirmation, by itself was not sufficient for

probable cause for a warrantless arrest. The trial court disagreed

and the appellate court affirmed. This Court has not addressed

whether a CODIS hit, without confirmation, provides probable

cause to arrest without a warrant.

In this case CODIS provided four hits R1046-47. The hits

certainly were not probable cause for a warrantless arrest of four

individuals.

The witnesses at the suppression hearing testified that CODIS

is an investigative lead T1053, 1058. This it is not sufficient for

probable cause. In this case, Law enforcement initially used the

CODIS hit to justify subsequent investigation by putting Petitioner

7

under surveillance. However, they then went further by using the

CODIS hit as probable cause to arrest Petitioner without a warrant.

An investigative lead is not the same as probable cause to arrest.

The most convincing evidence, that a CODIS hit by itself does

not provide probable cause, is the NDIS manual, the FBI

Operational Procedural Manual for CODIS, A15-113, which requires

that the laboratory not even release the CODIS result until after

there has been confirmation of the match:

An Offender Candidate Match occurs when a DNA profile

developed from crime scene evidence by a Casework

Laboratory matches an offender’s DNA profile developed

by an Offender Laboratory. A Candidate match is not a

Confirmed Match. And the personally identifiable

information relating to Candidate Match shall not be

released until the laboratory has confirmed the

Match.

A67, R573 (italicized emphasis added).

In this case there was no DNA sample taken from Petitioner

until after the warrantless arrest.

Further, the letter from the State CODIS Administrator of

FDLE requires CODIS confirmation with a known biological

sample of the suspect:

The laboratory must inform the law enforcement agency

of the need for a known biological sample from the

8

subject and this sample must be analyzed as the final

step in the confirmation step process.

R620,1038.

At the suppression hearing, Tiffany Roy, a forensic DNA

expert who reviews the work of private and public laboratories

R1065, helped explain the logic for confirmation. Roy testified that a

sample is required for the CODIS confirmation to check what in the

database has been entered in correctly as sometimes mistakes

occur and different names get uploaded with different profiles

R1068. Roy has seen hits reported and later it was discovered there

was problem with the upload T1072. Sometimes hit occur without

sufficient information R1074. FBI requires for CODIS acquiring a

sample from the candidate to confirm the match R1075-1077.

In addition, the very nature of DNA analysis requires more

than an unconfirmed CODIS hit. Laboratories do not match the

entire DNA. Only portions of the DNA are matched. Thus, to

understand the significance of matching a portion of the DNA some

type of statistical frequency of the match needs to be demonstrated.

See e.g. Brim v. State, 695 So. 2d 268, 271 (Fla. 1997) (“It is

important to recognize, though, that DNA testing is a two-step

9

process. The fact that a match is found in the first step of the DNA

testing process may be ‘meaningless’ without qualitative or

quantitative

estimates

demonstrating

the

significance

of

the

match.”). The CODIS hit does not provide any such frequency

analysis.

In Murray v. State, 692 So. 2d 157, 162 (Fla. 1997)(emphasis

added), the National Research Council's finding was relied on "to

say that two patterns match, without providing any scientifically

valid estimate (or, at least, an upper bound) of the frequency with

which such matches might occur by chance, is meaningless." This

was in the context of using a DNA comparison as evidence.

Certainly, evidence that is meaningless is not probable cause to

arrest someone without a warrant.

Of

course,

a

CODIS

hit

without

confirmation

is

not

meaningless because it provides an investigative lead. However, as

explained above, a CODIS hit without a confirmation does not yield

probable cause.

10

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DANIEL EISINGER

Public Defender

JEFFREY L. ANDERSON *

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

janderson@pd15.org

lmattocks@pd15.org

appeals@pd15.org

* Member of the United States Supreme Court Bar

11