Friday, July 01, 2011
Ind. Decisions - "Ind. Supreme Court OKs taking of cheek swab DNA sample"
INDIANAPOLIS | Likening the taking of a cheek swab DNA sample to police fingerprinting a criminal suspect, the Indiana Supreme Court ruled Thursday that Hoosiers do not have a right to consult an attorney prior to giving up their DNA.For background, see this ILB entry from Feb. 9, 2010. (Interestingly, oral argument was heard nearly 18 months ago.)
In a 4-1 decision, the court did not explicitly encourage police to take DNA along with fingerprints, but distinguished the taking of a cheek swab DNA sample from other bodily intrusions for which courts have typically required police to get a warrant before obtaining. * * *
In police custody, Garcia-Torres consented to the taking of a cheek swab DNA sample. His DNA matched DNA from the first victim's rape kit and DNA found on a shoe in the second victim's apartment.
Garcia-Torres argued in his appeal that the taking of a DNA sample is a search and under Indiana law he should have been allowed to consult with an attorney before deciding whether to consent to the search.
The state's high court, in a decision written by Chief Justice Randall Shepard, did not directly rule on whether the taking of a DNA sample is a search because both the state and Garcia-Torres proceeded as though it was.
But the justices said the main purpose of DNA, like fingerprints, is for identification, and the Indiana requirement that a person in police custody be permitted to consult with an attorney before a search does not apply because once in custody there is no legitimate reason to conceal one's identity.
Justice Robert Rucker, a graduate of Valparaiso University School of Law, dissented from the court's ruling and said the taking of DNA is no different than drawing blood, which federal courts have ruled is a search and subject to Fourth Amendment protections.
By consenting to the search, Garcia-Torres waived his federal constitutional rights, but Rucker said the Indiana Constitution provides greater protection to individuals by requiring police to tell a suspect he or she has the right to consult with an attorney before consenting to a search.
Rucker said because that instruction was not provided to Garcia-Torres the DNA evidence could not be used against him and he should receive a new trial.
Posted by Marcia Oddi on July 1, 2011 09:22 AM
Posted to Ind. Sup.Ct. Decisions