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COA splits on cheek-swab requirements

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A split Indiana Court of Appeals ruled taking a cheek swab for DNA testing requires reasonable suspicion only, not probable cause, under federal and state constitutions.

In Arturo Garcia-Torres v. State of Indiana, No. 64A03-0812-CR-630, Judges Cale Bradford and Elaine Brown agreed that police didn't need a warrant before obtaining a cheek swab from Arturo Garcia-Torres, who was brought in for questioning about the attacks of two Valparaiso University students. Garcia-Torres was eventually convicted of rape, two counts of burglary, and attempted rape.

While being questioned by the police, Garcia-Torres consented to a cheek swab to collect DNA evidence. He also made incriminating statements that were eventually suppressed at his joined trial.

The majority concluded police didn't need a warrant to get the evidence because they had reasonable suspicion Garcia-Torres committed the attacks.

"If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion," wrote Judge Bradford, mentioning pat-down searches for weapons or field-sobriety tests.

The majority supported its decision with In re Shabazz, 200 F. Supp. 2d 578, 585 (D.S.C. 2002), from the U.S. District Court in South Carolina. In addition, police had more than a hunch that Garcia-Torres was the attacker.

Judges Bradford and Brown also concluded the DNA evidence shouldn't be suppressed under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). It would do no good to consult with an attorney regarding rights to refuse consent and search warrants when a defendant can't refuse consent and the state doesn't have to have a search warrant, wrote Judge Bradford, so Pirtle's advisement requirement has no place in the context of a reasonable suspicion search.

"It makes little sense to punish the police for failing to give an advisement of one's right to counsel when exercise of that right could only produce such a futile consultation."

Judge Terry Crone argued in his dissent that taking the swab from a custodial suspect requires probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle.

"It is difficult to imagine a more intrusive invasion of an individual's personal privacy than a DNA search, and the potential consequences of such a search are much more significant than the majority suggests," he wrote, adding the DNA may reveal irrelevant information for law enforcement purposes.

Judge Crone believed Garcia-Torres should have been informed of his right to counsel about the search and that Pirtle and other Indiana Supreme Court cases don't distinguish between searches requiring probable cause and those requiring only reasonable suspicion.

"If our supreme court wants to carve out an exception to the rule it announced in Pirtle, that is its prerogative, not ours," he wrote.

Judge Crone would reverse Garcia-Torres' convictions, remand for a new trial, and sever the charges against him. The majority affirmed the joining of his charges, ruling the crimes were connected together for purposes of Indiana Code Section 35-34-1-9(a)(2), and upheld his convictions.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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