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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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