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Supreme Court rules on cheek swab case

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In a 4-1 decision handed down June 30, the Indiana Supreme Court found a man's consent to the swab of his cheek for DNA was voluntary, so the swab didn't violate the Fourth Amendment.

In Arturo Garcia-Torres v. State of Indiana, No. 64S03-0912-CR-550, Chief Justice Randall T. Shepard authored the majority opinion that delved into caselaw regarding extracting bodily evidence from a person, such as blood draws, urine samples, and fingerprints. Arturo Garcia-Torres, convicted of rape, attempted rape, and two counts of burglary, challenged the denial of his motion to suppress DNA evidence taken from a cheek swab while he was detained by police. Garcia-Torres was read his Miranda warnings in Spanish prior to the swab and confessed to attempting to rape one of the victims. The DNA taken from Garcia-Torres matched the DNA taken from another victim's rape kit and DNA found on a shoe left in another victim's apartment.

His incriminating statements to police were suppressed because the Miranda warnings hadn't been accurately translated into Spanish.

At issue is whether a cheek swab from a person under arrest is a search requiring its own separate warrant or other justification. The chief justice noted that most courts that have addressed the constitutionality of cheek swabs have concluded that it is a "search" for the purpose of the Fourth Amendment.

The justices looked at cases dealing with searches, including blood and breath samples, and non-search examples that dealt with fingerprinting.

"Fourth Amendment principles seem to suggest that DNA has more in common with fingerprints then it does with blood alcohol content, but like many courts, the parties to this appeal have taken for granted that the swab was a search requiring its own separate probable cause proceedings, even for a suspect in lawful custody for rape," Chief Justice Shepard wrote.

The evidence shows that Garcia-Torres voluntarily consented to the cheek swab, so it was not a violation of the Fourth Amendment. The majority also held that a Pirtle advisement wasn't required before the swab was taken. The various interests at stake on occasions when the high court has required a Pirtle advisement — police searches of homes or vehicles — aren't present in the instant case, so Garcia-Torres didn't have to be given the advisement that he had the right to consult an attorney about giving consent to search.

Justice Robert Rucker dissented, focusing on the issue of whether a person in police custody is entitled to be advised of his right to counsel before consenting to a cheek swab for DNA. A cheek swab is search under the meaning of the Federal Constitution, he wrote, and this can be no less true under Indiana's Constitution.

The Indiana Constitution makes no distinction as to what the search is when it says "the right of the people to be secure in their person, houses, papers, and effects, against unreasonable search or seizure, shall not be violated. ..." It doesn't matter whether the search is of a home or a person, he wrote.

He found the search in this case to be illegal because it was conducted without a warrant, but because Garcia-Torres consented, there was no violation.

"But, the Indiana Constitution provides greater protection than the Federal Constitution. And under our state constitution the investigating officer was required to advise Garcia-Torres that he had a right to consult with his lawyer before consenting to the search. Because no such advisement was given, the consent was invalid as a matter of Indiana law," he wrote.

He would reverse the judgment of the trial court and remand for a new trial.
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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