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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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