Court sets lower standard for DNA testing

Police don't need "probable cause" to compel cheek swab

Dan Carden
Posted: Friday, October 2, 2009 12:00 am | No Comments Posted

INDIANAPOLIS | Police can take a cheek swab DNA test from a suspect if they have "reasonable suspicion" the person committed a crime, the Indiana Court of Appeals ruled Wednesday in a case involving a rape near Valparaiso University.

In a 2-1 opinion, the court said police do not have to get a warrant or meet the higher standard of "probable cause" in order to compel a DNA sample.

The court said a cheek swab DNA test is a minimally invasive, limited search similar to a field sobriety test or pat-down for weapons. Therefore, police need only meet the lower "reasonable suspicion" standard, the court ruled.

The decision came in an appeal by Arturo Garcia-Torres, an illegal immigrant convicted in Porter County in 2008 for the rape and attempted rape of two former Valparaiso University students. He was sentenced to 36 years in prison followed by deportation.

The rape occurred July 18, 2004, at an apartment on Homer Court, and the attempted rape occurred June 12, 2005, at an apartment on Garfield Street, both in Valparaiso, police said.

Police obtained the rapist's DNA from the victim of the first assault and from a shoe left behind at the scene of the second case.

Using victim descriptions of their attacker, the shoe and a cell phone found near the apartment where the attempted rape occurred, police suspected Garcia-Torres committed the crimes. When brought in for questioning, Garcia-Torres agreed to a cheek swab DNA test.

Garcia-Torres' attorney argued the consent was not valid because Garcia-Torres did not understand English, wasn't informed of his right to counsel before the DNA test was taken and the DNA test was tied to a confession suppressed by a lower court.

The court rejected all three arguments. An appeal to the Indiana Supreme Court is likely.

Judge Terry A. Crone dissented from the court's opinion saying that police should be required to meet the higher probable cause standard before taking DNA.

"It is difficult to imagine a more intrusive invasion of an individual's personal privacy than a DNA search, and the potential consequences of such a search are much more significant than the majority suggests," Crone wrote in his dissent.

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