Garcia–torres v. State

• Decision Date: 30 June 2011
• Docket Number: No. 64S03–0912–CR–550.,64S03–0912–CR–550.
• Citation: 949 N.E.2d 1229
• Parties: Arturo GARCIA–TORRES, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

949 N.E.2d 1229

Arturo GARCIA–TORRES, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 64S03–0912–CR–550.

Supreme Court of Indiana.

June 30, 2011.

Kurt R. Earnst, David K. Payne, Indianapolis, IN, Attorneys for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Scott L. Barnhart, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 64A03–0812–CR–630.

SHEPARD, Chief Justice.

Arturo Garcia–Torres was convicted of rape, attempted rape, and two counts of burglary and was sentenced to thirty-six years in prison. Garcia–Torres challenges the use of DNA evidence gathered when police obtained a cheek swab. The parties having passed over the question whether the swab was a search requiring separate probable cause, we analyze the issue under ordinary doctrine of the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. We affirm the conviction.

Facts and Procedural History

Garcia–Torres's first victim was M.S., a twenty-one year old undergraduate attending Valparaiso University. On July 18, 2004, Garcia–Torres frantically rang the doorbell of M.S.'s apartment. When M.S. cracked the door to look outside, Garcia–Torres forced his way in. A violent struggle ensued, and M.S. sustained numerous injuries (including a bruised spleen) as well as damage to her apartment. After struggling for about two hours, M.S. was exhausted and no longer possessed the strength to keep Garcia–Torres at bay. Garcia–Torres forced a sock into her mouth to silence her and then had vaginal intercourse with her, taking her virginity. When Garcia–Torres had finished he covered M.S. with a blanket, told her “it's going to be okay,” and departed the scene. (Trial Tr. at 51.)

M.S. immediately called 911. M.S. was taken to Porter Memorial Hospital where genital swabs were taken. Valparaiso Police Detective Thomas Horn began investigating the rape. The investigation remained open, but without a suspect until Garcia–Torres struck again.

Garcia–Torre's second victim was S.P., a graduate student at Valparaiso University. S.P.'s apartment was roughly half a mile from M.S.'s apartment. On June 11, 2005, S.P. awoke to the sound of her dog growling; she also heard a tapping at her window. She began to get up when Garcia–Torres leapt through the window and landed on her bed. S.P. began screaming for help and struggling with her attacker. A neighbor heard the screaming and called the police.

Garcia–Torres had just started to remove S.P.'s shorts when Valparaiso Police Officer Brian McDonald knocked forcefully on her door. When the officer announced himself, Garcia–Torres released S.P. S.P. opened the door for McDonald who ran into her bedroom just in time to see Garcia–Torres jump out a window. Garcia–Torres was not wearing pants, socks, or shoes. Two other Valparaiso Police officers waiting outside saw this leap out the window and chased after Garcia–Torres, but he eluded them.

After the attack, S.P. returned to the apartment with Detective John Ross. S.P. found a shoe in her bedroom that she had never seen before. A search of the area where officers had chased Garcia–Torres produced a cell phone that was registered to Ray Garcia, Garcia–Torres's roommate. Ray Garcia told officers that he had sold the phone to Garcia–Torres. Ray Garcia and another roommate were able to identify the shoe found in S.P.'s apartment as being similar to shoes owned by Garcia–Torres. Garcia–Torres matched the description of the attacker given by S.P. These revelations made Garcia–Torres the prime suspect, and the police picked him up and took him to the police station.

Garcia–Torres was placed in an interview room where Officer Baldazo of the Lake Station Police Department, who was used as in interpreter, attempted to read the Miranda warnings in Spanish. Detective Ross interviewed Garcia–Torres. He confessed to attempting to rape S.P. (Mot. to Suppress Hr'g Tr. at 62, May 1, 2006; Mot. to Suppress Hr'g State's Ex. 1, May 1, 2006.) Garcia–Torres then directed officers to S.P.'s apartment and other locations as they drove around Valparaiso. After being interviewed by Detective Ross, Garcia–Torres was informed that he was being detained.

After the interview with Detective Ross, Detective Horn swabbed the inside of Garcia–Torres's cheek for DNA. Officer Baldazo described the procedure to Garcia–Torres and asked him “Is it okay?” (Mot. to Suppress Hr'g Tr. at 54, Apr. 5, 2007.) Garcia–Torres consented and opened his mouth. Garcia–Torres's DNA matched both the DNA taken from M.S.'s rape kit and some DNA found on the shoe left in S.P.'s apartment.

Detective Horn then interviewed Garcia–Torres. Garcia–Torres agreed to show the officers where the rape occurred. Garcia–Torres again got in a car with officers and directed them to M.S.'s apartment. He then confessed to raping M.S. (Mot. to Suppress Hr'g State's Ex. 4, May 1, 2006.) The trial court subsequently suppressed all of Garcia–Torres's incriminating statements because the Miranda warnings had not been accurately translated into Spanish.¹ On the other hand, the trial court denied Garcia–Torres's motion to suppress the DNA evidence.

Garcia–Torres was convicted of one count of rape,² one count of attempted rape,³ and two counts of burglary.⁴ The court sentenced Garcia–Torres to thirty-six years in prison. The Court of Appeals affirmed. Garcia–Torres v. State, 914 N.E.2d 268 (Ind.Ct.App.2009). We granted transfer and now affirm.⁵

Standard of Review

We review de novo a trial court's ruling on the constitutionality of a search. Campos v. State, 885 N.E.2d 590, 596 (Ind.2008).

I. Is a Cheek Swab a Search?

The obvious threshold question is whether a cheek swab taken from a person under arrest is a search requiring its own separate warrant or other justification. A cheek swab can be analogized to two lines of cases, those governing intrusions into the body, which suggest that a cheek swab is a search, and those governing fingerprinting and other physical identifiers, which suggest that a cheek swab is not a search. Most courts that have addressed the constitutionality of cheek swabs have concluded that a cheek swab is a “search” for the purpose of the Fourth Amendment, and have reached this conclusion with relatively little discussion. See, e.g., United States v. Pool, 621 F.3d 1213 (9th Cir.2010); Louisiana v. Lee, 976 So.2d 109, 124 (La.2008).

Biological Intrusions

In Schmerber v. California, the United States Supreme Court held that a blood test to check blood alcohol level was a search. 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Law enforcement officer arrested Schmerber for driving under the influence of alcohol and took him to a hospital, where a police officer directed a doctor to draw Schmerber's blood despite the arrestee's objection. Analysis of the sample revealed a high blood alcohol content. The Court held that the search was reasonable, in part, because blood tests are commonplace and “involve[ ] virtually no risk, trauma, or pain.” Id. at 771, 86 S.Ct. 1826. It stated that “the Constitution does not forbid the States minor intrusions into an individual's body” although it stressed the narrowness of its holding. Id. at 772, 86 S.Ct. 1826.

In the years after Schmerber, the Court examined several more bodily intrusion cases. In Cupp v. Murphy, the police took fingernail scrapings without a warrant from a suspect who was being interviewed, but was not yet under arrest. 412 U.S. 291, 292, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). The Court declared that this was a reasonable search, despite the suspect's objection to the procedure. Id. at 296, 93 S.Ct. 2000. In Bell v. Wolfish, the Court held that visual body-cavity inspections of pretrial detainees were searches, but found the searches reasonable. 441 U.S. 520, 558–59, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In Winston v. Lee, prosecutors wanted a court to order the defendant to undergo surgery requiring general anesthetic so that a bullet lodged in his chest could be used as evidence. 470 U.S. 753, 755, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The Court held that such an intrusion would be a search and an unreasonable one. Id. at 766, 105 S.Ct. 1611.

These bodily intrusion cases culminated in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). At issue in that case were federal regulations that required railroads to take blood and urine samples from employees after railroad accidents and permitted the railroads to require their employees to submit to breath and urine tests under certain circumstances. Id. at 609–11, 109 S.Ct. 1402. The regulations required the railroads to turn the samples over to federal authorities.

The Court held that all three types of tests were searches. It noted that the blood tests required “penetration beneath the skin,” an aspect of the procedure in Schmerber which had led to the finding of search. Id. at 616, 109 S.Ct. 1402. In holding that breathalyzer are tests searches, the Court reasoned that breathalyzer tests “generally require[ ] the production of alveolar or ‘deep lung’ breath for chemical analysis implicat[ing] similar concerns about bodily integrity.” Id. at 616–17, 109 S.Ct. 1402 (citations omitted). Although taking a urine sample does not involve an intrusion into the body, the Court held taking such a sample was a search because it intruded on what is normally a private act and because it could reveal private medical facts. Id. at 617, 109 S.Ct. 1402.

This Court has also addressed whether biological testing is a search. In McClain v. State, the defendant raped a child and infected her with gonorrhea. 274 Ind. 250, 410 N.E.2d 1297 (1980). Police obtained a warrant to swab the defendant's penis. We concluded after a thorough discussion that this swab was a search. Although the swab did not involve a probing beneath the skin, it did involve more...