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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues