ILNews

Supreme Court rules on cheek swab case

Back to TopCommentsE-mailPrintBookmark and Share

In a 4-1 decision handed down June 30, the Indiana Supreme Court found a man's consent to the swab of his cheek for DNA was voluntary, so the swab didn't violate the Fourth Amendment.

In Arturo Garcia-Torres v. State of Indiana, No. 64S03-0912-CR-550, Chief Justice Randall T. Shepard authored the majority opinion that delved into caselaw regarding extracting bodily evidence from a person, such as blood draws, urine samples, and fingerprints. Arturo Garcia-Torres, convicted of rape, attempted rape, and two counts of burglary, challenged the denial of his motion to suppress DNA evidence taken from a cheek swab while he was detained by police. Garcia-Torres was read his Miranda warnings in Spanish prior to the swab and confessed to attempting to rape one of the victims. The DNA taken from Garcia-Torres matched the DNA taken from another victim's rape kit and DNA found on a shoe left in another victim's apartment.

His incriminating statements to police were suppressed because the Miranda warnings hadn't been accurately translated into Spanish.

At issue is whether a cheek swab from a person under arrest is a search requiring its own separate warrant or other justification. The chief justice noted that most courts that have addressed the constitutionality of cheek swabs have concluded that it is a "search" for the purpose of the Fourth Amendment.

The justices looked at cases dealing with searches, including blood and breath samples, and non-search examples that dealt with fingerprinting.

"Fourth Amendment principles seem to suggest that DNA has more in common with fingerprints then it does with blood alcohol content, but like many courts, the parties to this appeal have taken for granted that the swab was a search requiring its own separate probable cause proceedings, even for a suspect in lawful custody for rape," Chief Justice Shepard wrote.

The evidence shows that Garcia-Torres voluntarily consented to the cheek swab, so it was not a violation of the Fourth Amendment. The majority also held that a Pirtle advisement wasn't required before the swab was taken. The various interests at stake on occasions when the high court has required a Pirtle advisement — police searches of homes or vehicles — aren't present in the instant case, so Garcia-Torres didn't have to be given the advisement that he had the right to consult an attorney about giving consent to search.

Justice Robert Rucker dissented, focusing on the issue of whether a person in police custody is entitled to be advised of his right to counsel before consenting to a cheek swab for DNA. A cheek swab is search under the meaning of the Federal Constitution, he wrote, and this can be no less true under Indiana's Constitution.

The Indiana Constitution makes no distinction as to what the search is when it says "the right of the people to be secure in their person, houses, papers, and effects, against unreasonable search or seizure, shall not be violated. ..." It doesn't matter whether the search is of a home or a person, he wrote.

He found the search in this case to be illegal because it was conducted without a warrant, but because Garcia-Torres consented, there was no violation.

"But, the Indiana Constitution provides greater protection than the Federal Constitution. And under our state constitution the investigating officer was required to advise Garcia-Torres that he had a right to consult with his lawyer before consenting to the search. Because no such advisement was given, the consent was invalid as a matter of Indiana law," he wrote.

He would reverse the judgment of the trial court and remand for a new trial.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

ADVERTISEMENT