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Supreme Court rules on cheek swab case

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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.
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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