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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. Here an atheist worries about the Indiana rules, when the real and demonstrated problems are (1) anti-Christian bias and (2) a refusal to follow their own rules as to the Indiana Board of Law Examiners! Such sweet, sweet irony! See, e.g. https://www.scribd.com/doc/299040062/Brown-ind-Bar-memo-Pet-cert and https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  2. Child Advocates profited over 6 million last year alone. They are bullies & do not act in children's best interests but rather their own. They placed my children full time with their unlicensed alcoholic father despite recommendations for over 5 yrs. Meanwhile my children have medical conditions left untreated living with their father and their education has suffered greatly. Get these people terminated!!!

  3. Child Advocates profited over 6 million last year alone. They are bullies & do not act in children's best interests but rather their own. They placed my children full time with their unlicensed alcoholic father despite recommendations for over 5 yrs. Meanwhile my children have medical conditions left untreated living with their father and their education has suffered greatly. Get these people terminated!!!

  4. Jeste?my najlepszym Kancelaria w Olkuszu. Odwied? nas na prawnika (adwokat) do wynaj?cia w Chrzanowie, Wadowicach i Olkuszu. Lokalny prawnik lub adwokat do wynaj?cia. adwokat wadowice

  5. Thanks for this article. We live in Evansville, IN and are aware of how bad the child abuse is here. Can you please send us the statistics for here in Vanderburgh, County. Our web site is: www.ritualabusefree.org Thanks again

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