Garcia-Torres v. State

268% GARCIA-TORRES,

Arturo

Appellant/Defendant, Indiana, Appellee/Plaintiff.

STATE of

No. 64A03-0812-CR-630. Appeals Indiana.

Sept. 2009. Granted Dec.

Transfer Earost,

Kurt R. K. Payne, David Michi- IN, gan City, Attorneys Appellant. for Zoeller, Gregory F. Attorney General of Indiana, Barnhart, L. Deputy Seott Attor- General, IN, ney Indianapolis, Attorneys Appellee. OPINION BRADFORD, Judge. Appellant/Defendant Arturo Garcia-Tor appeals res Rape,1 from his convictions for Burglary,2 two counts of and Attempted Rape,3 all as B Concluding Class felonies. (1) taking of a cheek swab for purposes extracting profile a DNA is a requiring suspicion, cause, under the Indiana and (2) constitutions; federal police had rea suspicion sonable to take a cheek swab Garcia-Torres; (8) taking from of a subject cheek swab is not to the advice-of- requirements counsel of Pirtle v. (4) (1975), 328 N.E.2d 634 Ind. DNA evidence obtained from Garcia-Tor inextricably sup res was not to his bound confession; pressed charges against properly Garcia-Torres were joined, we affirm. 35-42-4-1(a) (2004). 35-42-4-1(a); § § 1. Ind.Code 3. Ind.Code 35-41-5-1 (2004). 35-43-2-1(1) (2004). §

2. Ind.Code AND through FACTS PROCEDURAL Garcia-Torres fled window. officers,

HISTORY by other police Pursued Garcia- north, initially Torres fled doubled back July 3:00 a.m. on approximately At southbound, and was last seen 2004, M.S., running twenty-one- twenty-two- University, Street. year-old Valparaiso student at west on Union S.P. described her and walked to her apartment male, left a friend's "Hispanic attacker as a younger apartment. arriving A few minutes after looking, approximately five six to five sev- home, ringing M.S. heard a "frantic" of her en, hair, pounds, having to 150 dark opened Tr. 37. When M.S. p. doorbell. in length." p. two to three inches Tr. slightly, pushed door morning, Later that a mobile telephone way his inside. Garcia-Torres first forced Valparaiso was found on Street approxi- ground dragged M.S. to the and then her mately four blocks due west of S.P.'s briefly tо the bedroom. After M.S. evaded apartment building and less that one block managed pull Garcia-Torres and to down a north of Union Street. Also later that cabinet, pushed Garcia-Torres her onto morning, S.P. found a in shoe her bedroom again the cabinet and foreed her onto the belong that did not to her. Police placed floor. Gareia-Torres in deter- sock vaginal telephone M.S.'s cheek and had intercourse mined that the mobile was in name, and, with her. When Gareia-Torres was fin- Ray Garcia's when they went ished, M.S., to apartment, spoke placed his with Guillermo he a blanket over told sleep it go her to and would be Torres, Garcia's roommate and an acquain- left,. "okayl,1' p. and Tr. 51. M.S. de- tance of Garcia-Torres's. po- Torres told her in Hispanic scribed attacker as male Garcia, liсe that a friend of Gareia-Tor- his mid-to-late twenties with a small res's, given telephone had his mobile chin, amount of hair elose-eropped on his Garcia-Torres and that Garcia-Torres had hair, very and a thin but museular build. using been it. photograph When shown a It later was determined that Garcia-Tor- apartment, the shoe found in S.P's Tor- res was the source DNA in a sample res verified that it identical was to a shoe vagina. collected from M.S.'s owned Garcia-Torres. When police later,

Fewer than eleven on months Garcia, spoke with he verified that he had 12, 2005, a.m., shortly June and before 1:27 telephone sold his mobile to Garcia-Torres S.P., twenty-four twenty-five years then previous month and Garcia-Tor- Valparaiso University old and also a stu- res owned like the shoes shoe found in dent, asleep apartment was in her when apartment. police S.P.'s Garcia also told dog awakened her growling. S.P. Garcia-Torres, they where could find window, rustling heard outside her saw did, when they noticed that he window, in silhouette her and noticed that description given by matched the S.P. of open. point, it was At that Garcia-Torres her attacker. Garcia-Torres's DNA was jumped through the window and landed later determined to be on the shoe. S.P.'s bed. When pinned Garcia-Torres 18, 2005, Valparaiso On June bed, S.P. on her loudly S.P. sereamed as brought questioning. Garcia-Torres neigh- she could. S.P.'s sereams caused a Valparaiso Police Detective John Ross telephone police, bor to who arrived questioned Gareia-Torres about the attack and knocked on the door as Gareia-Torres S.P., by Valparaiso on followed Police De- attempting rеmove S.P.'s under- Horn, questioned Valparaiso wear. Officer tective Thomas who Gar- When Police himself, Rodney rape McDonald announced cia-Torres about M.S. At the interview to his inadmissible Detective Horn's confessions and so must beginning suppressed. also be therefore Garcia-Torres, re- requested he with sample via collect a DNA consent to ceived "A trial court has broad discretion the inside of Garcia-Torres's a swab from admissibility ruling on the of evidence." cheek. Barrett "Accord (Ind.Ct.App.2005), trans. denied. interviews, Garcia-Torres During both ruling a trial court's ingly, we will reverse statements, statements incriminating made admissibility of evidence when on on the trial court ordered trial court abused its discretion." Id. 8, 2007, January On December 2006.4 involves a decision "An abuse of discretion motion filed a second clearly against lоgic and effect on the testing done suppress the results of before the of the facts cireumstances the inter during sample DNA collected court." Id. standard of review "[Olur court the trial May

view. On reviewing ruling when a trial court's on the second motion denied Garcis-Torres's of a search and seizure we validity [is that] suppress. consider the evidence most favorable to 28, 2008, January Garcia-Torres On ruling any the and uncontradicted evidence against to sever the counts filed a motion contrary the whether determine him, court denied on which motion the trial support there is sufficient evidence to the 30, 2008, State, 4, September ruling." February v. 719 N.E.2d 2008. On Callahan rape, guilty of jury a found Garcia-Torres 430, (Ind.Ct.App.1999) (citing 434 Melton attempted and burglary, 564, two counts of (Ind.Ct.App. v. 705 N.E.2d 566 B felonies. On Novem- rape, all as Class 1999)). "If the evidence is we conflicting, only the consider evidence favorable to the 14, 2008, trial court sentenced ber the and will affirm if the aggregate ruling ruling sup Garcia-Torres to an sentence by probative evidence of thirty-six years ported of incarceration. substantial Melton, 705 at (citing value." Id. 566). DISCUSSION AND DECISION A. Fourth Amendment Suppression DNA Test Results

I. Fourth the Amendment Sample Obtained from for provides States Constitution that United right people of the to be secure in "[tlhe the trial Garcia-Torres contends that effects, houses, persons, papers, their and admitting court abused its discretion against unreasonable searches and sei sample DNA test of the obtained results zures, violated, no shall not be and War him interview. Gar- during police issue, cause, from his upon probable but rants shall that the DNA evidence argues affirmation, cia-Torres par Oath or and supportеd (A) grounds: must be on three ticularly describing place to be searched, police persons things a valid consent be- and the to be failed obtain (B) of the obtaining sample question, overriding fore seized." "The function protect personal advise him of Amendment is to police adequately failed to Fourth dignity against Pirtle v. unwarranted right privacy his to counsel under and (C) 16, (1975), v. and intrusion the State." Schmerber Cal 263 Ind. 323 N.E.2d 634 757, 767, 1826, 16 86 S.Ct. inextricably ifornia, the DNA bound 384 U.S. evidence was rights into properly his Miranda suppression translate 4. The of Garcia-Torres's state- ments, appeal. Spanish, is not at issue made did not on the basis (1966). People 'pat weapons, "In such as a for down' license [v. L.Ed.2d Wolf check, registration sobriety or field Colorado, 338 U.S. 69 S.Ct. State of 961, (overruled v. Snyder tests." 5388N.E.2d on L.Ed. 1782 Ohio, (Ind.Ct.App.1989), grounds by Mapp U.S. trans. denied. other (1961))] 6 L.Ed.2d 1081 81 S.Ct. comparing After cheek swabs with '(t)he security pri recognized we of one's other searches requiring only reasonable arbitrary by the vacy against intrusion suspicion, we conclude the DNA sam police' being 'at the core the Fourth here, ple technique collection at issue al society'" to a free Amendment' and 'basic invasive, though minimally is also one of Id. requires those limited searches notes that the tak Gareia-Torres ‍​​‌‌​‌‌​‌​​​​‌​​​‌​‌‌​‌​​​​​​​​​‌​‌​‌​​‌​​​‌​‌‌​‍suspicion therefore be sample of the DNA was done without a ing conducted without a warrant. If anything, that his consent to warrant contends the cheek swab impact involves much less voluntary.5 "General sample was not subject on the than some other searches ly, prerequisite a search warrant is all agree may be conducted based on constitutionally proper search and sei mere reasonable As suspicion. the United Callahan, zure." 719 N.E.2d at 434. "In observed, States has search, involving cases a warrantless a limited search of the outer "[even cloth proving State bears burden of an ex severe, ing weapons constitutes a ception requirement." to the warrant Id. brief, though intrusion per cherished Farber, (citing State v. security, surely sonal and it must be an (Ind.Ct.App.1997)). 1116 We need not ad annoying, frightening, perhaps and humili question dress the of whether Garcia-Tor Ohio, ating experience." Terry 392 U.S. 1, 24-25, 1868, 88 20 swab, S.Ct. LEd.2d889. validly consented to the DNA res however, because we conclude that another yet, universally And it is understood that exception requirement to the warrant has pat-down may such a upon be conducted been established. suspicion. reasonable exception

"One to the warrant contrast, In a cheek swab takes even requirement investigatory stop pat-down is an less time than a or field sobriety whereby police stop ("FST's") a officer can brief and Moreover, tests painless. and is ly pur for a swab of the person investigative very detain inside of cheek is poses suspi scope, pat-down if the officer has a reasonable limited in whereas a will cion, facts, supported by generally exploration articulable involve manual of the entirety suspect's body, including of a afoot, activity if the may eriminal be even probable genital Finally, officer lacks cause." Santana v. areas. a swab does not 1355, (Ind.Ct.App. carry nearly potential 1359 the same for oppro- FSTs, pat-downs (citations omitted). brium as or 1997) which will "In such a case may briefly suspect] typically public thoroughfares. the officer detain occur on [a such, conduct a limited 'non-invasive' search As swabs even less violative of are Dionisio, 5. The United States Court has ob- seizure of the evidence." U.S. v. obtaining physical 8, 764, 1, that "the evi- served 410 U.S. 93 S.Ct. 35 LEd.2d 67 person potential (citation omitted). dence from a involves a Garcia-Torres challenges only the Fourth Amendment violation at two different collection of the DNA 'person' necessary sample, by police question- levels-the 'seizure' of the not his seizure such, bring government ing. him into contact with As we address the collection agents subsequent sample. and the DNA and the search for 274 Here, dignity interests in human we conclude that had far "[the which the Fourth Amendment

privacy pro more than a mere hunch that Garcia-Tor- pat-downs than tects" FSTs. Schmer res had been involved in the attack on S.P. ber, 769-70, 384 U.S. at 1826. If S.Ct. they when sample. collected thе DNA At pat-downs performed and FSTs time, police knew that a mobile tele- mere suspicion, based it phone belonging to Garcia-Torres had follows, then, swabs, that cheek which are very been found near to where S.P.'s at- burdensome, may even less be as well. tacker had last been fleeing seen when police, that a shoe identical to shoes owned The United States District for the by Garcia-Torres had been found S.P.'s of South District Carolina has reached the apartment, and that he answered to S.P.'s Shabazz, same conclusion. See re In (D.S.0.2002). general description of her attacker. The F.Supp.2d and, shoe, telephone particularly, the when Shabazz Court concluded collection of they one considers where were found and sample by a saliva cheek swab lies some- they attack, were where between a found soon after the "surgical procedure" in- skin, volving protrusion strongly suggest were left under the cause, requires showing attacker, and both items were traced back Gareia-Torres, things such as the collection of who happened voice sam- also fit ples, handwriting facts, exemplars, finger- description. S.P.'s objective These printing, which are not even searches sub- taken together, support a reasonable sus- ject to the Fourth Amendment. Id. at picion that was S.P.'s at- Garcia-Torres tacker, Schmerber, thereby justifying the cheek swab. (citing 384 U.S. at 1826). Although S.Ct. the Shabazz Court B. Pirtle particularized concluded that suspicion was contends that all required before a saliva swab could be DNA evidence obtained from him must be administered, it also concluded that a sali- Pirtle, va swab did not rise to the level of a under 268 Ind. at "surgical procedure" under Schmerber. Pirtle, 328 N.E.2d at 684. In the Indiana followed, Supreme person Court held that "a who then, Id. at It the give asked to consent to while in existence of suspicion reasonable would custody police presence suffice. Id. is entitled to the prior making and advice of counsel to do, Concluding, as we that a whether to give decision such eonsent." cheek swab is a search justified which is 29, Id. at 323 N.E.2d at 640. The Indiana by the presence of suspicion, reasonable Supreme explained Court further the doe- only question other police is whether State, application trine's in v. Jones had reasonable suspicion in this case. (Ind.1995): N.E.2d 49 Whether suspicion the officer's rea was person custody A in must be informed sonable case-by-case is determined on a right of the with counsel consult by engaging basis in a analy fact-sensitive possibility consenting about the to a totality sis of the of the cireumstances. search before a valid consent can be (Ind.Ct. Belcher, v. 92, State 725 N.E.2d App.2000), given.... an Giving arrestee Miranda trans. denied. "Law enforce ment warnings commencing interroga- officers before must have more than an inchoate him unparticularized sufficiently tion does not inform suspicion or hunch, but right prior his to consult with counsel need not have the level of sus picion necessary for probable consenting cause." Id. to a search. (citations omitted, is whether the Pirtle doctrine even applies

Id. at 54 brackets re- added). moved, to cheek swabs. emphasis Here, although Garcia-Torres was ad- We conclude that Pirtle cannot right that he had the to consult

vised with case, apply to the instant as such an appli аttorney answering police ques- before cation would serve none of the principles tions, advisement, as it did not refer to undergirding that decision and lead to an searches, adequate is not under Pirtle and unsound result. We have already conclud its progeny. As the Indiana ed in our Fourth analysis Amendment 495, in Court noted Sims v. 274 Ind. cheek swabs are requiring searches (1980): 413 N.E.2d 556 suspicion, and we reach the A Miranda waiver is tied to the inter- same conclusion under Section 11. Under ‍​​‌‌​‌‌​‌​​​​‌​​​‌​‌‌​‌​​​​​​​​​‌​‌​‌​​‌​​​‌​‌‌​‍rogation process police. of the An ad- the federal reasonableness test for gather pursuant

visement to that case informs ing of physical samples, the "extent the suspect interrogated about to be procedure may threaten the that he has the right to confer with safety or health of the individual" and the answering questions counsel before and "extent of intrusion the individual's to have counsel with him during ques- dignitary personal interests in privacy and Thus, tioning. no inference would arise bodily integrity" should be "[wJleighed in person the mind of the about to be against ... the community's interest from questioned the administration of fairly and accurately determining guilt or advisement, the Miranda there is a Lee, innocence." Winston v. 470 U.S. right to confer with counsel in deciding 761-62, 105 S.Ct. 84 LEd.2d 662. whether consent to a search of one's This test tracks to a large extent the See- dwelling. tion 11 test requires consider, us to 500-01, (overruled Id. at 413 N.E.2d at 559 part, degree "the of intrusion the method grounds by on other Wright v. 658 of the search or imposes seizure on the (Ind.1995)). activities, ordinary citizen's and ... extent of Moreover, law enforcement needs."6 Litch there seems to us little doubt that Garcia-Torres was in eustody (Ind. when field swab, he was requested give the cheek 2005). While we beliеve that a cheek swab as he presence police two is intrusive enough that some par level of station, detectives at the had been ticularized suspicion is required, we do advised of most his rights, Miranda and believe that it is so intrusive require as to had already admitted to his role in the probable cause. Given very low de T74 gree of intrusion of a cheek swab and the State, attack on S.P. See Ackerman v. extremely compelling law enforcement N.E.2d 970 (Ind.Ct.App.2002) (concluding that needs, defendant was in custody after she we conclude that the proper balance transported away had been from her home is struck by requiring reasonable suspi by police; admitted to drinking, driving, Ackerman, cion. Cf. 774 N.E.2d at 981 leaving accident; and the seene of an (noting and cause is not required ), had been Mirandized trans denied. I, administer FSTs under Artiсle See is, however, There an inquiry, initial which tion 11), trans. denied. test, case, The degree first factor in this "the particular of fied a not what level of concern, suspicion, knowledge that a viola- justification required particular for type occurred," go tion has ques- seems to to the Litchfield, of search. 824 N.E.2d at 361. particular tion justi- of whether a search was apply Pirtle such We decline Moreover, under the Fourth Court.7 just as it is to advise a the failure way punish as to is a rec- Amendment, suspicion reasonable right that he has the to consult subject require- to the warrant exception ognized when the consultation can do with counsel See, I, eg., Article Section ment under in the context of a good, him no at least 590, 597, 885 N.E.2d Campos v. test Consequently, the DNA cheek swab. suspicion reasonable ample had police here on not rendered inadmissible results are a crime. had committed was not ad the basis that Garcia-Torres course, this, is that of of significance con right of his to counsel before vised sus- reasonable had established police onee Ackerman, to the cheek swab. senting swab, Cf. cheek to conduct picion (concluding at 982 justified under already fully search apply to FSTs and Pirtle doctrine did 11-with or without Gareia-Tor- Section to counsel did right failure to advise of so without need consent and res's for results). suppression of test not require consultation Because warrant. the DNA Evidence was Whether C. your rights attorney regarding with an Inextricably to the Bound require- and the various refuse consent Suppressed Confessions you no warrant can do for a search ments refuse consent you cannot good when Finally, Gаrcia-Torres con obtain a search not need to the State does him linking that the DNA evidence tends warrant, requirement Pirtle's advisement suppressed to the two assaults must aof in the context place inextricably sup has no linked to his simply it is because lit- It makes search. suspicion pressed confession. failing to for police punish tle sense to be a confession is When to coun- right one's of give advisement obtained, unlawfully evi it was cause right could of that sel when exercise inextricably bound to the dence which is a futile consultation. such produce be suppressed confession will also asked Garcia-Torres needlessly have to be futile advisement sion: the sent cireumstances Strict following unsound to a search and application results of the suppressed because this case would of his of Pirtle failed to DNA test right unjust conclu- to counsel. under the give for con- lead to would him a (1) Hall v. 584, 588 250 Ind. it is shown that illegal proper 229 Ind. ered (1976). confession, objection, some 80, N.E.2d 570. 264 Ind. means the evidence was discov ^[235] Dowlut v. Watts independent N.E.2d State, (1968) unless (1950) of the request that the for consent It is true result, would doubt We came after Garcia-Torres doing more the cheek swab the State for effectively punish re- them, incriminating statements made had constitutionally required than day on S.P. the before. the assault garding the Pirtle intended have been could are searches to arrest searches incident strictly dangers example 7. Another required. police do If of a search no consent is applying Pirtle is in the context arrest, consent, ex- any well-established in the another evidence found incident not ask See, eg., hand, requirement. ception the warrant the other admissible. On search is (Ind.Ct. State, 956 v. Wilson giv- without police ask for consent should always are con- App.2001). Such searches advisements, reading of the a strict ing Pirtle custody, so suspect is in ducted when the clearly an require suppression, case would Pirtle, written, always apply will applied if result. unsound swabs, however, them. with cheek As Horn, however, that, 35-34-1-11(g) testified Indiana pro- Detective Code section based on the similarities locations vides that physical descriptions

the crimes and the (2) two or more Whenever offenses have victims, given by the joined been for trial the same indict- suspect prior to his con- already prime ment or solely information on the to Detective Ross and he would fession ground they are of the same or any requested have the cheek swab character, similar the defendant shall (April Supp. Hearing event. Tr. right have a to a severance of the of- 47). The trial court was entitled to believe court, fenses. In all other cases testimony, which establishes that the upon motion of the defendant or the DNA evidence was obtained means in- prosecutor, grant shall a severance of dependent from the confession. offenses whenever the court determines that severance is appropriate promote Summary

D. a fair determination of the defendant's summary, In we conclude that the col- guilt or innocence of each offense consid- justified lection of cheek swabs was under ering: the Fourth Amendment the existence of (1) the charged; number of offenses suspicion, the Pirtle doctrine (2) require suppression does not of the DNA complexity of the evidence to offered; results, be test and the DNA test results are inextricably Garcia-Torreg's

not linked to (3) whether the trier of fact will be such, suppressed confession. As the trial distinguish able to the evidence and court did not abuse its discretion in admit- apply the intelligently law as to each ting testing the results of the DNA on offense.

material obtained from the cheek swab. "[Sleverance of offenses as a mat Charges ‍​​‌‌​‌‌​‌​​​​‌​​​‌​‌‌​‌​​​​​​​​​‌​‌​‌​​‌​​​‌​‌‌​‍II. Severance of right ter of required] [is under subsection 1l(a) only

Garcia-Torres contends that when the joined offenses are solely trial court in allowing charges erred because of the reason listed in sub arising from the incident with S.P. to be 9(a)(1), i.e., section that the offenses are of joined with the charges arising from the the same or similar character." Ben-Yis incident with M.S. Gareia-Torres contends rayl (Ind. 690 N.E.2d the charges joined solely 1997) were be (citing Brown v. 650 N.E.2d they cause are of the same or similar (Ind.1995)). "However, when the character. joined Indiana Code section 35-34-1- offenses are under subsection 9(a)(2), 9(a) the court grant must a severance provides that only if it determines that it is 'appropriate joined or more [tJwo offenses promote a fair determination of the information, in the same indictment or innocence," guilt defendant's or based on with each separate offense stated in a 11(a)(1) (8)." (cit subsections through Id. count, when the offenses: ing Conner v. (1) are of the same or similar charac- (Ind.1991)). ter, even if part single of a scheme plan; or Garcia-Torres contends that

(2) are based on the same conduct or charges joined solely various were on the on a series of acts together connected basis that are of the same or similar or constituting parts single of a character and that he is therefore entitled plan. scheme or to severance as right. agree of We cannot three bank example, suppose For that entitled to sever- was that Garcia-Torres robberies are committed over four- It that is well-established right. ance as of in in year period different cities which 9(a)(2), may offenses subsection "[ulnder antique used an silver cross- justi- the robber together' to sufficiently 'connected be that it bow. This seenario is so unusual establish that a if the State can fy joinder likely robbery that each highly is operandi linked modus common using the by person committed the same motive induced that the same crimes and antique silver crossbow. This is same oper- Id. Modus that criminal behavior." of proving "the mark of Zorro" mode working" of literally "method andi means fact, remarkably it identity; is a unusual of criminal behav- pattern refers to a single in which a detail suffices to estab- separate crimes ior so distinctive identity. lish the work of the same recognized be as wrongdoer. Wilkerson (Tex.Crim Segundo v. 270 S.W.3d (Ind.Ct.App.2000). With .App.2008) the Indiana respect operandi, to modus mind, (and perhaps this in another With has said that Supreme Court accurate) way ques more to formulate the be, "Are crimes inquiry must these in posed Penley tion is: Does the evidence say similar that one can strikingly so "signa these crimes establish a regarding certainty that one and with say that one with ture" such can reason committed them?" Not person same certainty were committed able only methodology must the of two Here, by person? the same the answer to similar, but strikingly crimes be cases, "yes." which question is Both unique ways method must occurred within eleven months of one an person. the crimes to one attribute other, involved a home invasion and the spoke English Spanish in a accent attacker (Ind. Penley v. general physical descrip and fit the same 1987) (discussing operandi modus an (Tr. 237). 54, 81, 167, 215, Both tion. context). evidentiary Valparaiso were female students in victims course, operandi, of Evidence of modus early their twenties who lived within a half means, but, rather, whose is not end (Tr. 31-82, 89, 156-57, mile of each other. is to establish that two purpose real 242). totality the evidence of were committed more crimes above, the DNA re along described with apparent it to us that person, same is vagina from M.S.'s that matched covered of than traditional evidence evidence other the shoe found in recovered from DNA, may such as ac- operandi, modus room, say S.P.'s allows one to with certain complish purpose. were committed ty that the two crimes such, person. the same As the two series of will be an accumulation of Typically, it together" pur crimes crimes are "connected small that will mark several details of Indiana section 35-34-1- person, poses such as Code as the handiwork of one motive, 9(a)(2) commonality place, appearance joined simply because and were character. they were of the same or similar victim, occasions, howev- ete. On other (in er, eviden- Segundo, 270 S.W.3d at 89 one will suffice to See unique characteristic context, that "DNA found provide tiary concluding "signature." The Texas appel matched murder victims following Criminal offered the both Appeals has left appellant if profilе-it lant's DNA illustration of this so-called "mark of Zor- [viectims.]"). identity: ro" mode establishing calling card in both his the same or similar character. The totali- then, question, The next is wheth ty trial court its er the abused discretion of the evidence the regarding manner in committed, joining charges considering the the num which the crimes were along charged, complexity ber of offenses of with discovery of Garcia-Torres's seenes, whether DNA offered, at both signa- constitutes a the evidence to be distinguish the trier of fact will be able to ture sufficient to establish a "series of acts apply intelligent the evidence and the law together" connected purposes for ly § as to each offense. Ind.Code 35-34- 35-34-1-9(a). Indiana section Code More- 1-11(a). Here, over, does not ar we conclude that Garcia-Torres has gue that the considerations above indicate failed to establish that the trial court an abuse of discretion on the part of the abused its in declining discretion to sever court, trial and we see no such indication the charges against him.

in the charged record. Because the State judgment of the trial court is af- only Garcia-Torres with four crimes and firmed. none of the evidence particu strikes us as

larly complex, there would seem to have BROWN, J., concurs. jury

been little chance of confusion. Gar CRONE, J., dissents with opinion. cia-Torres has failed to establish that the trial court abused CRONE, its discretion declin Judge, dissenting.

ing charges against to sever the him. I believe that the taking of a cheek swab from a custodial suspect purposes for

Conclusion extracting a DNA profile is a search re- the question On of whether the trial quiring probable causе under the Fourth court abused its discretion in admitting Amendment subject and is to the advice- generated by evidence the cheek per- swab of-counsel requirements of Pirtle As Garcia-Torres, formed on we conclude that such, I conclude that the trial court com- justified under the Fourth Amend- mitted reversible error in admitting the ment the existence of suspi- DNA evidence obtained from Garcia-Tor- clon. We further conclude that cheek Also, res's cheek swab this case. I performed swabs purpose of ob- believe that Garcia-Torres was entitled to taining a DNA sample, while searches un- charges against severance of the him as a I, Therefore, der Article matter of right. Section of the Indiana I respectfully Constitution, subject are not to the advice dissent. requirements Finally, of Pirtle. we con- reiterate, To U.S. that the clude DNA evidence was not inex- stated in Schmerber overriding "[t]he tricably bound to Garcia-Torres's confes- function of the Fourth Amendment is to sions that were on other protect personal privacy and dignity court, therefore, grounds. The trial did against unwarranted intrusion not abuse its in admitting discretion evi- State." at U.S. 86 S.Ct. 1826. dence related to the DNA profile obtained ‍​​‌‌​‌‌​‌​​​​‌​​​‌​‌‌​‌​​​​​​​​​‌​‌​‌​​‌​​​‌​‌‌​‍"[The Fourth Amendment pro- does not

through the cheek swab. seizures, scribe all searches but the question

On of whether the trial those are unreasonable. What is rea- court correctly sonable, course, allowed the join State to all depends on all of the Garcia-Torres, charges against we surrounding circumstances the search or conclude charges first that the were not seizure and the nature of the search or Ry. joined solely seizure itself." Skinner v. Lаbor Ex- on the basis were of 280 619, cause. id. at Ass'n, 602, probable existence of See 489 109 S.Ct. U.S.

ecutives' (citation 1826[, 770, 86 16 L.Ed.2d 908]. S.Ct. 1402, 639 108 L.Ed.2d inter explained omitted). The Court "[the a "'Where marks quotation privacy enforcement dignity law ests in human undertaken is search protects evidence of criminal forbid the Fourth Amendment to discover officials generally any ... reasonableness intrusions on the mere chance such wrongdoing, a warrant obtaining judicial of be might that desired evidence ob the requires 769-70, 1826[, cause showing probable ... the tained." Id. at 86 S.Ct. [and] Sha Warrant Clause'" by the required Accordingly, L.Ed.2d the 908]. 16 (quoting bazz, at 583 Verno F.Supp.2d 200 that "search warrants Court reasoned Acton, 646, ... ordinarily required are where intru v. 515 U.S. Dist. nia Sch. 47J 2386, L.Ed.2d 564 653, 132 115 S.Ct. body the human are con sions into ). Lee, (alterations "Howev (1995)) Id. In Winston v. 470 in Shabazz cerned." cireumstances, searches er, certain 1611[, under at 105 S.Ct. 84 LEd.2d U.S. under the may permissible and seizures 662], the held that a state court Court suspicions 'based on Amendment Fourth Lee, who had been ar directing order "reasonable," not rise to that, although do charged robbery, with to un rested and (quoting Id. probable cause'" the level of dergo surgery to remove the bullet T.L.O., 469 U.S. Jersey New left collarbone was an lodged under his (1985)). 720 83 L.Ed.2d S.Ct. 105 search under the Fourth "unreasonable" explained that Amendment. The Court Shabazz, majority which the In surgical "the reasonableness of although may a cheek swab concluding that in relies depends on a beneath the skin intrusions suspicion, upon reasonable be conducted in case-by-case approach, which the indi de of South Carolina District Court the security privacy vidual's interest quash a motion appellant's the nied society's interests in weighed against are "provide her to an oral requiring subpoena "thresh conducting procedure," the Id. testing." for DNA of her saliva sample was the existence of requirement" old pertinent analysis reads at 5808 cause. Id. at 105 S.Ct. follows: part as 1611[, L.Ed.2d 662]. 84 argues that "Schmerber [Appellant] however, case, distinguishable This showing a progeny" require

and its on two and Winston from Schmerber the saliva sam- cause" because "probable important, neither Most grounds. In procedure." "invasive ple is an sub- grand jury involved a those cases Schmerber, held that Court ex- grand jury's therefore poena; purpose test for the blood cause" stan- "probable from the emption driv- determining suspected drunken Moreover, the applicable. was not dard be- content was "reasonable" er's alcohol that led the Court concerns privacy in the of aleohol the evidence cаuse cases cause those require probable the time during disappear would blood in this case be- pronounced are not as warrant. necessary obtain intrusive as is not as 1826(, a saliva swab 770-71, cause at 86 S.Ct. 384 U.S. surgical bullet-removal test or a a blood up- Alithough 908]. L.Ed.2d in Winston de- The Court procedure. search, it noted the the warrantless held Shabazz, F.Supp.2d at this misconduct." investigation "under 8. Shabazz was engaging in rela- allegedly sexual F.B.I. extortion related with inmates and for tions reveals whether a applicable test as down search sus scribed Schmerber intrusions the skin." "surgical pect currently possesses beneath is armed or cont 1611[, at 84 raband,9 S.Ct. U.S. a cheek swab reveal not swab Although the saliva 662]. L.Ed.2d only suspect whether the has committed a slight person's a invasion of involves issue, at the crime but also whether he has "surgical it not a bodily integrity, is committed other for which crimes DNA therefore does not fall procedure" and Moreover, evidence has been collected. a require within Schmerber's threshold may legally significant cheek swab reveal Thus, cause. Id. no probable ment of information regarding paternity or mater needed be showing probable cause is nity, well information regarding ge as as grand jury may subpoe issue a fore the diseases, conditions, netically influenced Petitioner to requiring na duces tecum behaviors, none of which and are relevant sample. submit a saliva purpose. to a law enforcement Under (citation omitted). at Id. 583-84 circumstances, these I that a believe cheek true, may it be as the Shabazz suspect While swab of a custodial is reasonable stated, under the Fourth only Amendment if that a cheek swab involves court bodily of a only slight person's "a invasion probable cause exists to conduct such a State, the intrusiveness of the search integrity," Balding search10 v. 812 N.E.2d Cf. whether the procedure dispositive is not 169, 173-74 (Ind.Ct.App.2004) (holding search is reasonable. Under the Fourth compulsory cheek swab of incarcerat Amendment, we also "the must consider ed convicted offender for inclusion in state privacy nature of the interest which DNA database was reasonable search un State, Kopkey the search intruded." Amendment, der Fourth in that offender (cit- 331, (Ind.Ct.App.2001) 743 N.E.2d 337 "possessed expectation a reduced priva Vernonia, 654, 515 at 115 ing U.S. S.Ct. ... cy and the character of intrusion 2386), denied. It is difficult trans. minimal, and ... the State's interest was imagine a more intrusive invasion of an database"). in creating substantial a DNA personal than a DNA privacy individual's Assuming argument's sake that search, potential consequences the probable cause existed to conduct the significant such a search are much more ease, majority suggests. than the Whereas a the search was unrea sobriety police a sonable because the did not obtain a field test reveals whether intoxicated, currently pat- driver a warrant.11 See VanPelt v. 760 276, 1, 9. Burkett v. N.E.2d See 278 under Article Section 11 of the Indiana ('The Constitution. (Ind.Ct.App.2003) seizure of contra- during Terry weap- band detected search for level, person's Unlike blood alcohol permissible 'plain feel ons is under doc- shortly drinking after "diminishfes} during patdown trine.' If the lawful of the Schmerber, stops," 384 U.S. at 86 S.Ct. clothing, suspect's outer the officer feels an change throughout "DNA does object whose contour or mass makes its iden- person." span (tеstimony life of a at Tr. tity immediately apparent as contraband biologist of Indiana State Police forensic Les- officer, may warrantless seizure Harmon). Thus, exigent lie circum- executed.") (citations quotation and some exception requirement stances to the warrant omitted). marks frequently involving arise less in cases See, eg., cheek swabs. Frensemeier v. ("One 10. Garcia-Torres a state consti- does not raise (Ind.Ct.App.2006) Nevertheless, argument. well-recognized tutional I believe exception the warrant re- required quirement probable cause also would be is when have cause not vio- (Ind.Ct.App.2001) properly admitted evidence does ("Searches Jeopardy long without late the Double so and seizures that occur Clause evidence, erroneously all even that ad- in the form of a prior judicial authorization unreasonable, mitted, support jury per are se unless is sufficient warrant requirement applies."), (citation exception to the warrant verdict.") quotation marks (2002). omitted), The State trans. demied. ns. denied tra necessary contends that no warrant was remand, should be en On Garcia-Torres voluntarily con because charges against of the titled to severance disagree. I sented to search. right pursuant him a matter of as aside, agree I Warrant considerations 35-34-1-11(@a).13To Indiana Code Section majority that there is "little doubt with the me, that the patently it is obvious offenses custody that was in when joined solely were on the basis that the cheek requested give he was I are of the same or similar character. do such, Garcia- Op. at 275. As swab[.]" that not believe that the State established "be informed оf Torres was entitled to be operandi a common modus linked the two right to consult with counsel about the Segundo, 270 S.W.3d assaults. Unlike a search" possibility consenting to such relies, majority which the Jones, pursuant to Pirtle: 655 N.E.2d at not recov DNA evidence this case was noting 54. He not. It that is worth organs. ered from both victims' sexual ensuing Pirtle and the Indiana The DNA evidence from the second as Pirtle Court cases that mention do shoe, recovered from a sault was distinguish requiring between searches also contained DNA from someone other requiring cause and searches Tr. at than Garcia-Torres. See 358-68 suspicion. supreme reasonable If our (testimony Indiana State Police forensic court an exeeption wants to carve out Harmon). Moreover, the biologist Leslie Pirtle, the rule it announced in is its perpetrator rang оf the first assault prerogative, not ours. home, gain entry victim's doorbell to to her perpetrator whereas the of the second as sum, In the trial court erred admit la ting nearly year the DNA as a sault-which occurred one test results obtained through result con ter-climbed the victim's bedroom of the cheek swab. The State any window. As for the fact that both victims tends such error was harmless. Again, young I I were female students who lived disagree. Consequently, would other, reverse Garcia-Torres's convictions and within half mile of each this com Hirshey remand for a new trial12 See hardly surprising given that monality is relatively were in a (Ind.Ct.App. the assaults committed college small town. 2006) ("Retrial reversal for im- following view, my appeal exigent In the issue raised on is for the search and circumstances exist rendering obtaining impractical. a warrant properly more framed as whether the trial exigent justifies a One such circumstance that denying court abused its discretion in Garcia- warrantless occurs when incrimina- charges, rather Torres's motion sever the being ting de- jeopardy evidence is in Garcia, charges against "the than whether stroyed or immediate action removed unless majori- properly joined[,]" Torres were omitted), taken.") (footnote is and citation ty Op. at 270. states. trans. denied. agree majority 12. I with the that the DNA inextricably evidence was not bound to Gar- cia-Torres's confession. fundamentally, I believe that it

More argue

illogical because DNA suggests

evidence that Garcia-Torres com assaults, methodology

mitted both strikingly

the crimes is so similar that one say

can with a certainty person

the same them. committed Such approach stands operandi the modus

inquiry on its head and results in the

exceptionconsumingthe rule.14 reasons, foregoing

For the I respectfully

dissent.

Jeffrey PHELPS, Appellant-Defendant, Indiana, Appellee-Plaintiff.

STATE

No. 18A02-0903-CR-206. Appeals

Court of of Indiana.

5,Oct. antique 14. Unlike the silver crossbow men- identity, establish but rather evidence of iden- is, end, tity per ‍​​‌‌​‌‌​‌​​​​‌​​​‌​‌‌​‌​​​​​​​​​‌​‌​‌​​‌​​​‌​‌‌​‍se-that Segundo, rather than a tioned DNA is not evidence of a working" distinctive "method of that tends to means.

Case Details

Case Name: Garcia-Torres v. State

Court Name: Indiana Court of Appeals

Date Published: Sep 30, 2009

Citation: 914 N.E.2d 268

Docket Number: 64A03-0812-CR-630

Court Abbreviation: Ind. Ct. App.