ILNews

Supreme Court rules on cheek swab case

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. @BryanJBrown, You are totally correct. I have no words, you nailed it.....

  2. You have not overstated the reality of the present situation. The government inquisitor in my case, who demanded that I, on the record, to choose between obedience to God's law or man's law, remains on the BLE, even an officer of the BLE, and was recently renewed in her contract for another four years. She has a long history in advancing LGBQT rights. http://www.realjock.com/article/1071 THINK WITH ME: What if a currently serving BLE officer or analogous court official (ie discplinary officer) asked an atheist to affirm the Existence, or demanded a transsexual to undergo a mental evaluation to probe his/her alleged mindcrime? That would end a career. The double standard is glaring, see the troubling question used to ban me for life from the Ind bar right here: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners (see page 8 of 21) Again, what if I had been a homosexual rights activist before law school rather than a prolife activist? A gay rights activist after law school admitted to the SCOTUS and Kansas since 1996, without discipline? A homosexual rights activist who had argued before half the federal appellate courts in the country? I am pretty certain that had I been that LGBQT activist, and not a pro-life activist, my passing of the Indiana bar exam would have rendered me an Indiana attorney .... rather than forever banished. So yes, there is a glaring double standard. And some are even beyond the reach of constitutional and statutory protections. I was.

  3. Historically speaking pagans devalue children and worship animals. How close are we? Consider the ruling above plus today's tidbit from the politically correct high Court: http://indianacourts.us/times/2016/12/are-you-asking-the-right-questions-intimate-partner-violence-and-pet-abuse/

  4. The father is a convicted of spousal abuse. 2 restaining orders been put on him, never made any difference the whole time she was there. The time he choked the mother she dropped the baby the police were called. That was the only time he was taken away. The mother was suppose to have been notified when he was released no call was ever made. He made his way back, kicked the door open and terrified the mother. She ran down the hallway and locked herself and the baby in the bathroom called 911. The police came and said there was nothing they could do (the policeman was a old friend from highschool, good ole boy thing).They told her he could burn the place down as long as she wasn't in it.The mother got another resataining order, the judge told her if you were my daughter I would tell you to leave. So she did. He told her "If you ever leave me I will make your life hell, you don't know who your f!@#$%^ with". The fathers other 2 grown children from his 1st exwife havent spoke 1 word to him in almost 15yrs not 1 word.This is what will be a forsure nightmare for this little girl who is in the hands of pillar of the community. Totally corrupt system. Where I come from I would be in jail not only for that but non payment of child support. Unbelievably pitiful...

  5. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

ADVERTISEMENT