Garcia-Torres v. State
| Citation | 914 N.E.2d 268 |
| Decision Date | 30 September 2009 |
| Docket Number | No. 64A03-0812-CR-630.,64A03-0812-CR-630. |
| Parties | Arturo GARCIA-TORRES, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff. |
| Court | Court of Appeals of Indiana |
Kurt R. Earnst, David K. Payne, Michigan City, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Scott L. Barnhart, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant/Defendant Arturo Garcia-Torres appeals from his convictions for Rape,1 two counts of Burglary,2 and Attempted Rape,3 all as Class B felonies. Concluding that (1) the taking of a cheek swab for purposes of extracting a DNA profile is a search requiring reasonable suspicion, and not probable cause, under the Indiana and federal constitutions; (2) police had reasonable suspicion to take a cheek swab from Garcia-Torres; (3) the taking of a cheek swab is not subject to the advice-of-counsel requirements of Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975); (4) the DNA evidence obtained from Garcia-Torres was not inextricably bound to his suppressed confession; and (5) the charges against Garcia-Torres were properly joined, we affirm.
At approximately 3:00 a.m. on July 18, 2004, M.S., a twenty-one- or twenty-two-year-old student at Valparaiso University, left a friend's apartment and walked to her apartment. A few minutes after arriving home, M.S. heard a "frantic" ringing of her doorbell. Tr. p. 37. When M.S. opened the door slightly, Garcia-Torres pushed his way inside. Garcia-Torres first forced M.S. to the ground and then dragged her to the bedroom. After M.S. briefly evaded Garcia-Torres and managed to pull down a cabinet, Garcia-Torres pushed her onto the cabinet and again forced her onto the floor. Garcia-Torres placed a sock in M.S.'s cheek and had vaginal intercourse with her. When Garcia-Torres was finished, he placed a blanket over M.S., told her to go to sleep and that it would be "okay[,]" and left. Tr. p. 51. M.S. described her attacker as a Hispanic male in his mid-to-late twenties with a small amount of hair on his chin, close-cropped hair, and a thin but very muscular build. It was later determined that Garcia-Torres was the source of DNA in a sample collected from M.S.'s vagina.
Fewer than eleven months later, on June 12, 2005, and shortly before 1:27 a.m., S.P., then twenty-four or twenty-five years old and also a Valparaiso University student, was asleep in her apartment when awakened by her dog growling. S.P. heard rustling outside her window, saw a silhouette in her window, and noticed that it was open. At that point, Garcia-Torres jumped through the window and landed in S.P.'s bed. When Garcia-Torres pinned S.P. on her bed, S.P. screamed as loudly as she could. S.P.'s screams caused a neighbor to telephone the police, who arrived and knocked on the door as Garcia-Torres was attempting to remove S.P.'s underwear. When Valparaiso Police Officer Rodney McDonald announced himself, Garcia-Torres fled through the window. Pursued by other police officers, Garcia-Torres initially fled north, doubled back southbound, and was last seen running west on Union Street. S.P. described her attacker as a "Hispanic male, younger looking, approximately five six to five seven, 140 to 150 pounds, having dark hair, two to three inches in length." Tr. p. 215.
Later that morning, a mobile telephone was found on Valparaiso Street approximately four blocks due west of S.P.'s apartment building and less that one block north of Union Street. Also later that morning, S.P. found a shoe in her bedroom that did not belong to her. Police determined that the mobile telephone was in Ray Garcia's name, and, when they went to his apartment, spoke with Guillermo Torres, Garcia's roommate and an acquaintance of Garcia-Torres's. Torres told police that Garcia, a friend of Garcia-Torres's, had given his mobile telephone to Garcia-Torres and that Garcia-Torres had been using it. When shown a photograph of the shoe found in S.P.'s apartment, Torres verified that it was identical to a shoe owned by Garcia-Torres. When police spoke with Garcia, he verified that he had sold his mobile telephone to Garcia-Torres the previous month and that Garcia-Torres owned shoes like the shoe found in S.P.'s apartment. Garcia also told police where they could find Garcia-Torres, and when they did, they noticed that he matched the description given by S.P. of her attacker. Garcia-Torres's DNA was later determined to be on the shoe.
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.
During both interviews, Garcia-Torres made incriminating statements, statements that the trial court ordered suppressed on December 18, 2006.4 On January 8, 2007, Garcia-Torres filed a second motion to suppress the results of testing done on the DNA sample collected during the interview. On May 9, 2007, the trial court denied Garcia-Torres's second motion to suppress.
On January 28, 2008, Garcia-Torres filed a motion to sever the counts against him, which motion the trial court denied on February 4, 2008. On September 30, 2008, a jury found Garcia-Torres guilty of rape, two counts of burglary, and attempted rape, all as Class B felonies. On November 14, 2008, the trial court sentenced Garcia-Torres to an aggregate sentence of thirty-six years of incarceration.
Garcia-Torres contends that the trial court abused its discretion in admitting the DNA test results of the sample obtained from him during his police interview. Garcia-Torres argues that the DNA evidence must be suppressed on three grounds: (A) police failed to obtain a valid consent before obtaining the sample in question, (B) police failed to adequately advise him of his right to counsel under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), and (C) the DNA evidence was inextricably bound to his inadmissible confessions and so must therefore also be suppressed.
"A trial court has broad discretion in ruling on the admissibility of evidence." Barrett v. State, 837 N.E.2d 1022, 1026 (Ind.Ct.App.2005), trans. denied. "Accordingly, we will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion." Id. "An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court." Id. "[O]ur standard of review when reviewing a trial court's ruling on the validity of a search and seizure [is that] we consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling." Callahan v. State, 719 N.E.2d 430, 434 (Ind.Ct.App.1999) (citing Melton v. State, 705 N.E.2d 564, 566 (Ind.Ct.App. 1999)). "If the evidence is conflicting, we consider only the evidence favorable to the ruling and will affirm if the ruling is supported by substantial evidence of probative value." Id. (citing Melton, 705 N.E.2d at 566).
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." "The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). "In Wolf [v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)) ] we recognized "(t)he security of one's privacy against arbitrary intrusion by the police' as being `at the core of the Fourth Amendment' and `basic to a free society.'" Id.
Garcia-Torres notes that the taking of the DNA sample was done without a warrant and contends that his consent to the sample was not voluntary.5 "Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure." Callahan, 719 N.E.2d at 434. "In cases involving a warrantless search, the State bears the burden of proving an exception to the warrant requirement." Id. (citing State v. Farber, 677 N.E.2d 1111, 1116 (Ind.Ct.App.1997)). We need not address the question of whether Garcia-Torres validly consented to the DNA swab, however, because we conclude that another exception to the warrant requirement has been established.
"One exception to the warrant requirement is an investigatory stop whereby a police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot, even if the officer lacks probable cause." Santana v. State, 679 N.E.2d 1355, 1359 (Ind.Ct.App. 1997) (citations omitted). "In such a case the officer may briefly detain [a suspect] to conduct a limited `non-invasive' search such as a `pat down' for weapons, a license and registration check, or field sobriety tests." Snyder v. State, 538 N.E.2d 961, 963 (Ind.Ct.App. 1989), trans. denied.
After comparing cheek swabs with other searches requiring only reasonable suspicion, we conclude that the DNA sample collection technique at issue here, although minimally...
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