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Sunday, February 09, 2014

Ind. Courts - "Are mouth swabs, DNA collection constitutional?"

LuAnn Franklin reports in the NWI Times:

CROWN POINT | DNA evidence collected from mouth swabs figures prominently in many felony cases including sexual assault and burglary.

A felony rape case now pending before Lake Criminal Judge Samuel L. Cappas could set a new legal precedent in Indiana regarding the procedure of obtaining a buccal swab and collecting DNA from that swab.

The defendant, Gage Patrick Ringer, 22, and his attorney, Paul Stracci, filed a motion on Jan. 30 that both the buccal swab and DNA collection violate Ringer’s Fourth Amendment rights against unreasonable search and seizure by the government.

A grand jury indicted Ringer on Aug. 29, 2013, on charges of felony A rape. The indictment states Ringer forced a woman to have sexual intercourse while he was armed with a knife on April 1, 2013. DNA evidence was collected from the victim.

Stracci asked Cappas to stay or halt the buccal swab test on Ringer until a motion could be filed with the Indiana Court of Appeals within 30 days.

During the proceedings, Cappas said taking a buccal swab “is like taking a fingerprint. It isn’t more intrusive.”

The judge also said the DNA taken in the swab is “junk DNA” and has no genetic characteristics. Indiana law permits buccal swabs as part of the discovery process, Cappas said.

“I have a victim of sexual assault,” said Deputy Prosecuting Attorney Michelle Jatkiewicz in the state’s response. “The longer it takes in sexual assault (to go to trial), the worse it gets.”

Although Cappas agreed with the state that taking a DNA sample through a buccal swap is constitutional, he gave Stracci 30 days, until Feb. 27, to file an appeal to see if the appeals court would accept the case. That ruling postponed the testing on Ringer.

The parties are due back in court on March 4.

ILB: A buccal swab was the subject of a 4-1 Indiana Supreme Court ruling on June 30, 2011, Arturo Garcia-Torres v. State of Indiana. See also a COA ruling on Feb. 7, 2013, Terry Smith v. State of Indiana. The NWI Times had a story July 1, 2011, headed "Ind. Supreme Court OKs taking of cheek swab DNA sample."

Posted by Marcia Oddi on February 9, 2014 12:27 PM
Posted to Indiana Courts