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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

ADVERTISEMENT