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Tuesday, February 09, 2010

Courts - Cheek swabs and the 4th amendment

On Jan. 11, 2010, the Indiana Supreme Court heard oral argument in the case of Arturo Garcia-Torres v. State of Indiana (64S03-0912-CR-550, Porter Co.). Here is the summary from this Jan. 11, 2010 ILB entry:

Garcia-Torres was convicted of rape and burglary in the Porter Superior Court. The Court of Appeals affirmed, holding among other things that taking a cheek swab to obtain a DNA sample requires "reasonable suspicion", obtaining a swab is not subject to the advice-of-counsel requirements in Pirtle v. State, and the trial court properly denied the defense’s motion to suppress evidence. Garcia-Torres v. State, 914 N.E.2d 268 (Ind. Ct. App. Sept. 30, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

[See the ILB summary of the 2-1 COA opinion here. From the dissent: "I believe that the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle."]

According to p. 4 of the Indiana Court of Appeals opinion:
On June 13, 2005, Valparaiso police brought Garcia-Torres in for questioning. Valparaiso Police Detective John Ross questioned Garcia-Torres about the attack on S.P., followed by Valparaiso Police Detective Thomas Horn, who questioned Garcia-Torres about the rape of M.S. At the beginning of Detective Horn‘s interview with Garcia-Torres, he requested and received consent to collect a DNA sample via a swab from the inside of Garcia-Torres‘s cheek.
Yesterday evening Prof. Eugene Volokh posted this discussion of the issue, based on California federal decisions. Here is how Volokh's analysis of the decisions begins:
Cheek Swabs for Arrestees’ DNA Likely Don’t Violate the Fourth Amendment — Even Though Cheek Swabs of Pretrial Detainees Do Violate the Amendment.

That’s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We’re talking here about the taking of DNA just because someone is arrested or detained; if there’s probable cause to believe the DNA will reveal evidence of some crime — for instance, if there’s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape — and a warrant based on probable cause, that’s clearly constitutional.)

The readers' comments are also interesting.

Posted by Marcia Oddi on February 9, 2010 07:56 AM
Posted to Courts in general | Indiana Decisions